Today in Supreme Court History: November 12, 1975

11/12/1975: Justice William O. Douglas resigns.

Justice William O. Douglas

Comments

[Seamus]

Should have been good news, but Ford replaced him with Stevens (a/k/a Douglas Lite).

[Commenter_XY]

Whew....40+ years on the bench?

[Dan Schiavetta]

Bad man with good legal principles.

[Cal Cetín]

If you listen carefully, man, you can *hear* the penumbras emanating! Pass me some more interstate commerce, man.

[Alpheus W Drinkwater]

You should read Jack Balkin's "Abortion and Original Meaning." Interesting stuff.

[Cal Cetín]

Bookmarked.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=925558

No promises, but I've already read the abstract, and, gosh, it sure does look interesting. And creative!

[Alpheus W Drinkwater]

Well, he is an originalist (sort of), so a little creativity is always necessary.

[Dan Schiavetta]

Clarence Thomas made a joke of it, with a sign on his office. Yet those “penumbras” gave him the right to marry a white woman.

As usual, liberals do the hard work, the heavy lifting. While conservatives sit in the carriage, making fun of the big adults who are carrying them where they need to go.

[Dilan Esper]

I don't think those "penumbras" had anything to do with Loving. Indeed, the penumbras conceived by Douglas were so stupid (Third Amendment) to be useless.

Penumbras do exist, but Loving is a straightforward equal protection case- if you are a black man, you could marry a black woman, but if you are a white man, you couldn't. That's race discrimination. No penumbra needed.

And Griswold and Roe are best understood as substantive due process cases- they don't depend on how strong the analogy was to enumerated rights. Nor would you ever want them to, whether one thinks they are rightly decided or not.

A penumbral right would be something like Miranda's holding that the right to counsel attaches in the stationhouse even if you haven't been arrested yet. It's a logical and necessary extension of the Fifth Amendment rule against the use of coerced confessions (which is why it is a Fifth Amendment right and not a Sixth Amendment right). Penumbras exist. But only Douglas was idiotic and intellectually lazy enough to think you get to Griswold that way, and his analysis has never been followed in later cases.