How a 1965 Supreme Court Ruling Explains the Partisan Battle Over Kavanaugh's Confirmation
Opposition to Kavanaugh stems from a case that was decided the year Kavanaugh was born and was argued by professors from the law school from which he graduated.
One way to look at the situation of Brett Kavanaugh, the Supreme Court nominee awaiting a Senate vote, is as only the latest episode in the long story of Griswold v. Connecticut.
In other words, it's a story about Yale Law School.
Griswold is the 1965 case in which the Supreme Court struck down a Connecticut law that had outlawed the use of contraception. The court's opinion, by William Douglas, found a "right of privacy," reasoning in part that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
Griswold was the basis for Roe v. Wade, the abortion rights case decided by the Supreme Court in 1973. It was the basis for Lawrence v. Texas, the 2003 case in which the Supreme Court struck down a Texas anti-sodomy law. It was the basis for Obergefell v. Hodges, the 2015 case in which the Supreme Court found a constitutional right to same-sex marriage. In all three cases—Roe, Lawrence, Obergefell—the court's opinions cited Griswold extensively and relied on it.
Griswold was a Yale Law School project from beginning to end. The three lawyers who brought and won the case were two Yale law professors, Fowler Harper and Thomas Emerson, and a Yale Law School graduate, Catherine Roraback. Emerson was dean of Yale law school. Their client was in essence C. Lee Buxton, who was the chairman of the department of obstetrics and gynecology at Yale medical school. "Griswold" was Estelle Griswold, who established a birth control clinic in New Haven with Buxton to test the law.
The effects of the episode were eventually felt by another Yale law professor, Robert Bork. Bork, who taught at Yale from 1962 to 1975 and again from 1977 to 1981, was nominated to the Supreme Court by President Reagan in 1987. Bork's view that the Griswold opinion was flawed was the subject of questioning in the nomination hearings that eventually led to Bork's name becoming a verb. "All I have done was point out that the right of privacy, as defined or undefined by Justice Douglas, was a free-floating right that was not derived in a principled fashion from constitutional materials," Bork told Senator Biden.
Now comes Judge Kavanaugh, a graduate of Yale and Yale Law School. When President Trump nominated him to the Supreme Court, the Yale Law School issued a press release effusively praising him. It has since annotated the press release with an apology and clarification. On Friday, the school's dean, Heather Gerken, under pressure, issued a statement "calling for an additional investigation into allegations made against Judge Kavanaugh" and declaring that "proceeding with the confirmation process without further investigation is not in the best interest of the Court or our profession."
The Kavanaugh confirmation fight has bitterly divided the Yale Law faculty, to the point where one professor, Amy Chua, is being attacked, and defended, for how she allegedly advised students who wanted to apply to be his law clerks.
One reason that many Democratic senators and advocacy groups opposed Kavanaugh's confirmation even before a sexual assault allegation surfaced was their fear that a Justice Kavanaugh and his colleagues might overturn or limit the privacy right discovered in Griswold and extended in its successor cases.
People have different views on the wisdom of Griswold. Those who think it unwise or cruel for a state to outlaw contraceptives, abortion, gay sex, or gay marriage will celebrate the outcomes the opinion allowed. Others may agree with the policy effects but have concerns nonetheless about the process by which unelected justices overturn democratically enacted laws, and do so not on the basis of the Constitution's text but rather on "penumbras, formed by emanations." Some people may dislike both the process and the outcome. The number of those people, the intensity of their views, and their political power partly explain why the Yalies and their successor chose the legal route rather than relying on the state legislatures.
Whatever you think of Griswold, though, it's difficult to deny that it has been immensely consequential.
The opposition to Kavanaugh stems in part from Griswold, a case that was decided the year Kavanaugh was born and a case that was litigated by professors from the law school from which he graduated. It's too soon to see whether that amounts to tragedy or poetic justice, and it also may depend on your own view of the case. For sure, though, it is an example of how our history shapes our politics. It is, too, a demonstration of how our universities, for better or worse, are at not at the periphery of today's American perplexities, but at the center of them.
Ira Stoll is editor of FutureOfCapitalism.com and author of JFK, Conservative.
