Today in Supreme Court History: November 1, 1961

11/1/1961: Planned Parenthood League of Connecticut opens center in New Haven, CT.

"Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." An ''emanation'' refers to a ray of light. During a lunar eclipse, the ''umbra'' refers to the darkest part of the shadow formed when the Earth orbits between the sun and the moon. The ''penumbra'' refers to the lighter part of the shadow, where some of the ''emanations'' from the sun are visible.

Comments

[Dan Schiavetta]

Manila Investment Co. v. Park Trammell, 239 U.S. 31 (decided November 1, 1915): suit alleging breach of trust as to property was mere contract dispute and not Equal Protection violation and so no federal court jurisdiction

Anderson v. Harless, 459 U.S. 4 (decided November 1, 1982): another case holding that you can't seek habeas in federal court until the issue (here, a faulty jury instruction on how to find malice) has been argued in state court and the appellate process there has been exhausted

Norfolk Redevelopment and Housing Authority v. Chesapeake and Potomac Telephone Co. of Virginia, 464 U.S. 30 (decided November 1, 1983): telephone company forced to relocate lines due to street realignment wasn't "displaced person" entitled to benefits under federal relocation assistance statute; statute did not displace common law rule that public utilities forced to relocate from right-of-way must do so at own expense (we all hated the telephone company, but couldn't a Fifth Amendment "takings" argument have been made?)

[apedad]

RE: Griswold v. Connecticut

Facts of the case

In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument in furthering contraception. A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control clinic in New Haven in conjunction with Estelle Griswold, who was the head of Planned Parenthood in Connecticut. They were arrested and convicted of violating the law, and their convictions were affirmed by higher state courts. Their plan was to use the clinic to challenge the constitutionality of the statute under the Fourteenth Amendment before the Supreme Court.

Question

Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?

Conclusion (7 – 2, Jun 7, 1965)

A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal.

In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. While the Court explained that the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create the right to privacy in marital relations. The Connecticut statute conflicted with the exercise of this right and was therefore held null and void.

Justice Goldberg, joined by Justices Warren and Brennan, concurred. Rather than finding that the right to privacy was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments.

Justice Harlan concurred, arguing that the Due Process Clause of the Fourteenth Amendment protects the right to privacy.

Justice White concurred, arguing that the Fourteenth Amendment was the proper basis for the decision.

Justice Black, joined by Justice Stewart, dissented. Unpersuaded by the loose reasoning of the majority, Black felt that there was no way to infer that the Constitution contained a right to privacy. He also dismissed the views of the concurrences that it could be found in the Ninth and Fourteenth Amendments.

Justice Stewart, joined by Justice Black, filed a separate dissenting opinion. Stewart argued that despite his personal view that the law was “uncommonly silly,” he felt that the Court had no choice but to find it constitutional. (Oyez)

So is there a “right to privacy” in the Constitution?

I say yes, and it’s found in 4A.

[Dan Schiavetta]

Unfortunately Griswold is now on the chopping block. We probably won't see a ban on sale to married couples but everything short of that will be passed in Republican states.

I used to think Roe was safe but my ideas as to what can't possibly happen have been jolted recently.

[Martinned]

Indeed. It's not like this guy is running in a dark red state...

https://www.redandblack.com/athensnews/leaked-gov-kemp-audio-raises-concerns-about-future-of-contraceptive-access/article_7c32dcbe-422a-11ed-af77-53c37a5ef81c.html

[Mr. Bumble]

"Unfortunately Griswold is now on the chopping block. "

How so and where?

[Sarcastr0]

Substantive Due Process and right to privacy as doctrines.

I'm not sure it will come to that, but given this term's cert grants (circuit splits no, hot-button conservative issues yes), it is absolutely being talked about seriously.

[Brett Bellmore]

It's important to remember that, just because substantive due process goes away, does NOT mean that the rights that were originally recognized under it have to go away. Getting rid of substantive due process implies returning Privileges and Immunities to their intended place, not a wholesale cancellation of rights or abandonment of incorporation.

Roe didn't go away because of the Court rejecting substantive due process. It hasn't yet, sadly. It went away because the majority on the Court thought there wasn't actually a case for abortion being a traditional, unenumerated right.

I don't think any theory of rights can preserve an unenumerated right against the conclusion that there wasn't any basis for it to begin with.

[Sarcastr0]

Sure, we can just switch out jenga blocks and nothing will change!

This opens the door to reexamining our current rights regime wholesale - everything gets reexamined through a lens that hasn't been used in 150 years. Incorporation is already piecemeal. And then add in fundamental rights like marriage?

Maybe it'll be low key like you say, maybe it won't. I'd prefer if we stuck with our current functional regime.

I don’t think any theory of rights can preserve an unenumerated right
Except for parental rights, it seems. Those you are all about finding in the Constitution.

[Brett Bellmore]

You'd prefer if we stuck with our current dysfunctional regime.

""I don’t think any theory of rights can preserve an unenumerated right against the conclusion that there wasn’t any basis for it to begin with." [That bit was kind of important.]
Except for parental rights, it seems. Those you are all about finding in the Constitution."

Well, obviously, what would preserve parental rights, and a lot of other rights that aren't enumerated, is being able to demonstrate a historical basis for claiming they were rights. That's how Roe failed. Not due to being unenumerated, due to having been pulled out of the Court's ass in the first place.

[Bob from Ohio]

"Substantive Due Process"

I remember studying "Civil Substantive law" in school.

Substance is never Process.

Substantive Due Process is a oxymoron and the sooner it dies the better.

[David Nieporent]

Prof Bernstein has pointed out that this is historically wrong.

"Due process" by its nature implies that a certain level of process is due before the government can take away certain things from you. For some things, the level of process required is very low (after school detention for a student). For others, it's higher (criminal punishment). And for others, there is no level of process that is high enough. We would not accept that the government could order someone raped. Or order them to convert to a different religion. Regardless of how much procedure there was.

[Brett Bellmore]

But that doesn't demonstrate that substantive due process isn't an oxymoron. The reason government can't order you to convert to a different religion is that doing so would violate one of your "privileges and immunities" specified in the Bill of Rights.

Substantive rights don't go away if you abolish substantive due process, instead they have to rely on the P&I clause, as they were supposed to from the start. The only reason the Court invented 'substantive due process' in the beginning was to work around its own dirty deed in gutting the P&I clause. Because they didn't have the integrity to just outright say the Slaugherhouse Court had gotten it wrong.

[Bob from Ohio]

“Due process” ... certain level of process is due...level of process required ... no level of process"

Agreed, process or procedure affects substance because it affects results. However it is still not substance.

[apedad]

One thing . . . every state that changed has turned from red to blue (one exception *), so maybe the big picture isn't so bad.

* West Virginia but that was because of a single issue - coal - which will also eventually be a non-issue.

[Frank Drackman]

Showing my age, but I can't hear "Griswold" without thinking of Chevy Chase asking that Black dude for directions to the freeway...

Clark Griswald: We're from out of town.

Man Giving Directions: No shit.

[ReaderY]

From a logical point of view, I consider this line of cases an example of Court schizophrenia. Griswold reached its result on grounds marriage is really really special and different and hence a special constitutional category. Then Eisenstadt turned around and said there’s nothing special about marriage, in fact, it’s irrational to treat it differently. So far OK, two majorities can disagree, justices can change their minds. But the obvious consequence of Eisenstadt was to reverse Griswold. If there’s nothing special about marrriage, if it’s IRRATIONAL to think there’s anything special about marriage, than Geiswold was wrongly decided. Plain and simple.

Sure, Eisenstadt could have reached the same result on different grounds, as a fundamental rights case finding a new fundamental right broader than the one found in Griswold, based on some independent ratiknalee for declaring a new, broader fundamental righr. But it didn’t. It purported to be a simple traditional rational basis case, and was decided on grounds it’s irrational to treat marriage differently. If it’s irrational to treat marriage differently, than Griswd was an irrational decision.

It’s worth noting White found for the majority in Griswold but dissented from Roe. In Eisenstadt, he concurred in the result on the very narrow grounds that there was no record evidence of Baird’s marital status. That meant Eisenstadt hadn’t actually proven the statute was violated and didn’t have probable cause to arrest Baird, so Baird wins the case with no basis for forming an opinion on the statute.

In terms of practical outcomes, I think the current majority is more or less channeling White. Dobbs very much did so. So I think his opinions are reasonably good predictor of how the current majority will rule.

[David Nieporent]

Griswold is not on the chopping block. There is no constituency in the United States for banning contraception.

[not guilty]

I'm not sure it matters to a majority of this Supreme Court whether there is a constituency in the United States for banning contraception. Perhaps no state is likely to criminalize use of contraceptives across the board, but in light of Dobbs v. Jackson Women's Health, it is easy to envision a state prohibiting use of contraceptive devices that are believed (correctly or not) to be abortifacients. Dobbs directs that the standard of review for such a measure is rational basis analysis.

Such a prohibition as I have hypothesized would not pass muster under Griswold v. Connecticut, Eisenstadt v. Baird and Carey v. Population Services, but the substantive due process reasoning of Dobbs calls the continuing validity of those precedents into question. Justice Thomas's concurrence in Dobbs merely said the quiet part out loud.

[Frank Drackman]

Could have been a great "Mad Men" episode....
Don Draper "Any Ideas for the Planned Parenthood account??"
Pete Campbell "Controlling Minority Population since 1961!"
Don Draper "Outstanding as usual Campbell, anyone else?"
Roger Sterling "Where were these guys in 1941? would have saved me a fortune on my daughters weddings!"
Burt Cooper "I always liked the Eskimos approach, feed the Mongoloids to the Polar Bears"
Harry Crane (whispering to Pete) "don't tell him it was putting the old ones on Ice floes"

miss that show,

Frank