Stanley v. Illinois is one of the Supreme Courts more curious landmark cases. The holding is well known: the Due Process Clause both prohibits states from removing children from the care of unwed fathers simply because they are not married and requires states to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents rights, Stanley reaffirmed Lochner-era cases that had been in doubt and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this decision.
This Article tells Stanley's untold story for the first time, using original research of state court and Supreme Court records. Those records show that the State was concerned about Stanleys parental fitness and did not remove his children simply because he was unmarried, as is frequently assumed. The State, however, refused to prove Stanley unfit and relied instead on his marital status to justify depriving him of custody. That choice, and Stanleys avoidance of a due process argument, created a complicated Supreme Court decision-making environment.
This Article explores the Supreme Courts decision-making in Stanley and reveals new insights both about Stanley and the Court more broadly. Four Justices changed their votes from conference to the final decisionan extreme amount of voting fluidity that shifted the case outcome. The Justices varying and evolving views eventually led them to a strong due process holding even though Stanley did not ask for one. This issue fluiditywhen the Court issues a ruling based on arguments not raised by the partiesreflects a complex interaction between Justices efforts to form a majority coalition and lawyers litigation choices. Finally, the Justices papers reveal how Justice Harry Blackmuns shift to the liberal wing of the Courtand to a staunch parents rights votebegan with his angst over Stanley, despite his vote for the State.