This paper examines the place of public consciousness in United States Supreme Court rulings. Recent decisions in the Supreme Court of Japan often declared some statutes unconstitutional seemingly based on the changing public consciousness. Many scholars criticize this approach as it is unclear about what public consciousness actually means and how it affects the rulings. This paper suggests that it can be used to recognize the existence of problems of which we were once less aware. This notice urges the Justices to proceed with intensive examinations in the judicial review. Part Ⅰ deals with “emerging awareness” that appeared in Lawrence v. Texas. Cass R. Sunstein reads the decision in light of American-style desuetude and Daniel O. Conkle suggests the theory of evolving national values. This paper points out that the reading and theory of them overstates the role of the concept. Part Ⅱ addresses “new insights and societal understandings” used in Obergefell v. Hodges and the following decision, Sessions v. Morales-Santana. This paper confirms the discerning role of these concepts in each ruling.

阪口正二郎先生　名誉教授称号授与記念

一橋大学大学院法学研究科

2023-11

Japanese(jpn)

departmental bulletin paper

VoR

10.15057/81118

1347-0388

AA1161370X

一橋法学

22

3

59

84

22巻3号(2023.11)

https://hdl.handle.net/10086/81118