1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut 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.”
2022—At her Senate confirmation hearing, Supreme Court nominee Ketanji Brown Jackson pretends to be an originalist: “I believe that the Constitution is fixed in its meaning” and that “original public meaning [is] a limitation on my authority to import my own policy.” Never mind that, less than a year earlier, at her hearing on her nomination to the D.C. Circuit, Jackson had disclaimed having “a view on constitutional interpretation of text.”
As remarkably, in response to a question by Senator Marsha Blackburn about the 1996 VMI case, Judge Jackson testifies that she is “not familiar with” what is probably Justice Ginsburg’s best-known opinion, which struck down the Virginia Military Institute’s male-only admissions policy. Asked by Blackburn to provide a definition of what a woman is, Jackson wriggles to avoid incurring the wrath of transgender ideologues, as she responds, “I’m not a biologist.”