Bench Memos

This Day in Liberal Judicial Activism—June 7

1965— In Griswold v. Connecticut, the executive director of Planned Parenthood of Connecticut prescribed a contraceptive device for a married woman and contrived to get himself arrested for violation of an 1879 state law against use of contraceptives—a law that had never been enforced. In his majority opinion declaring a constitutional right for married persons to use contraceptives, Justice William O. Douglas (see This Day for April 4, 1939) infamously asserts that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and that “[v]arious [of these] guarantees create zones of privacy”—all of which, of course, it is the Court’s power and duty to discern. Douglas then cites six cases that supposedly “bear witness that the right of privacy which presses for recognition here is a legitimate one.” In fact, those cases did no such thing. (One case, for example, held merely that a homeowner’s conviction for resisting an inspection of his rat-infested home did not violate due process.)

Douglas purports to confine his ruling to the marital relationship: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” That this celebration of marriage would come from Douglas, who, in the year he penned it, was divorcing his third wife (after two years of marriage) and marrying his fourth, might suggest that it shouldn’t be taken seriously. The Court’s ruling seven years later in Eisenstadt (see This Day for March 22, 1972) would confirm that sense.

1993— New Jersey legal journals report that federal district judge H. Lee Sarokin personally accepts from the New Jersey Group Against Smoking Pollution the “C. Everett Koop Award for significant achievement toward creating a smokefree society.” Remarkably, Sarokin receives the award for his handling of a personal-injury action against cigarette manufacturers—the very matter (see This Day for February 6, 1992) in which the Third Circuit had already taken the extraordinary action of removing him from the case for “judicial usurpation of power,” for violating “fundamental concepts of due process,” and for destroying any appearance of impartiality.  

2006—In a notorious speech at Radcliffe in which she recounts her 1960s-nostalgia-inspired “crying jag” at a Simon and Garfunkel concert in 2003, New York Times Supreme Court reporter Linda Greenhouse rants about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.” Greenhouse later defends these comments as “statements of fact,” but the Times’s public editor criticizes her for violating her “overriding obligation to avoid publicly expressing these kinds of personal opinions”—and for “whining” about “the difficulties journalists face in being citizens.”

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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