Bench Memos

This Day in Liberal Judicial Activism—March 22

1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (see This Day for June 7, 1965) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

 

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Most Popular

Film & TV

America’s Favorite Movie

For more than a decade, readers volunteering their ratings on the movie site IMDb have declared The Shawshank Redemption (1994) their favorite film of all time. (Number two is The Godfather). Unlike the unholy tablets that are the box office charts, which are strongly linked to marketing budgets and show a ... Read More
Film & TV

America’s Favorite Movie

For more than a decade, readers volunteering their ratings on the movie site IMDb have declared The Shawshank Redemption (1994) their favorite film of all time. (Number two is The Godfather). Unlike the unholy tablets that are the box office charts, which are strongly linked to marketing budgets and show a ... Read More
Media

The Media Owe Senator Tom Cotton an Apology

One of the biggest issues people have with the mainstream press these days is that some of its members are so insulated that they end up buying into and promoting false narratives without actually checking these narratives' veracity. That seems to be exactly what happened in mid February, when major outlets ... Read More
Media

The Media Owe Senator Tom Cotton an Apology

One of the biggest issues people have with the mainstream press these days is that some of its members are so insulated that they end up buying into and promoting false narratives without actually checking these narratives' veracity. That seems to be exactly what happened in mid February, when major outlets ... Read More
Politics & Policy

Welcome Back, Plastic Bags

Single-use plastic bags are a miracle of modern technology. Cheap, light, convenient, and ubiquitous, they provide an elegant solution to a problem. If you recycle them, as most people do, and put your rubbish in them, that creates a net reduction in carbon emissions compared with buying the heavier, thicker ... Read More
Politics & Policy

Welcome Back, Plastic Bags

Single-use plastic bags are a miracle of modern technology. Cheap, light, convenient, and ubiquitous, they provide an elegant solution to a problem. If you recycle them, as most people do, and put your rubbish in them, that creates a net reduction in carbon emissions compared with buying the heavier, thicker ... Read More
U.S.

Some Good News Going into the Weekend

It’s Friday -- although I know it’s getting harder and harder to tell these days. You deserve a respite from yesterday’s gloom. (If you’re hungry for more gloom, there’s always the most recent edition of The Editors podcast -- and thank you, dear readers, for checking on me.) Today’s newsletter ... Read More
U.S.

Some Good News Going into the Weekend

It’s Friday -- although I know it’s getting harder and harder to tell these days. You deserve a respite from yesterday’s gloom. (If you’re hungry for more gloom, there’s always the most recent edition of The Editors podcast -- and thank you, dear readers, for checking on me.) Today’s newsletter ... Read More

The Didactic Plague

There are two Christian concepts on my mind on this Palm Sunday. One is theodicy, the other is the sin of presumption. “Theodicy” means “the vindication of God,” referring to a seeming conundrum that has vexed Christian thinkers since the beginning: How can evil coexist with an all-good, all-loving, ... Read More

The Didactic Plague

There are two Christian concepts on my mind on this Palm Sunday. One is theodicy, the other is the sin of presumption. “Theodicy” means “the vindication of God,” referring to a seeming conundrum that has vexed Christian thinkers since the beginning: How can evil coexist with an all-good, all-loving, ... Read More