Today in Supreme Court History: June 7, 1965

6/7/1965: Griswold v. Connecticut is decided.

 

Comments

[Dan Schiavetta]

Griswold v. Connecticut, 381 U.S. 479 (decided June 7, 1965): Fourteenth Amendment violated by statute outlawing sale of contraceptives; right to privacy makes enumerated rights more secure (Douglas famously holds that Bill of Rights guarantees “have penumbras, formed by emanations from those guarantees that help give them life and substance”)

Cohen v. California, 403 U.S. 15 (decided June 7, 1971): First Amendment protects immature jerkoff’s right to wear “Fuck the Draft” jacket in courthouse (contrast this guy with the brave schoolchildren in Minersville v. Gobitis)

Sanchez v. Mayorkas, 593 U.S. 409 (decided June 7, 2021): El Salvadoran who obtained Temporary Protected Status in 2001 due to conditions in his home country (devastating earthquakes) but who entered this country illegally in 1997 was properly denied green card

Krupski v. Costa Crociere, 560 U.S. 538 (decided June 7, 2010): This case deals with the pesky “relation back” doctrine (here, F.R.C.P. 15(c)), where you can add a party after the statute of limitations has expired if it got notice of the claim via service of a timely-sued party united in interest with it. The Court holds that the focus is not on plaintiff’s diligence in finally ascertaining the correct party but on the extent of the new party’s timely knowledge of the allegations. Suit was for injuries on a cruise ship.

Colorado General Assembly v. Salazar, 541 U.S. 1093 (decided June 7, 2004): In 2003 Republicans took over the Colorado legislature and tried to redistrict despite it being done only the year before (it’s supposed to be only once every ten years). This was rejected by the state Supreme Court. Here Rehnquist, Scalia and Thomas dissent to the denial of cert, citing the Constitutional guarantee that each state have “a Republican Form of Government” (art. IV, §4) (ha).

National Prohibition Cases, 253 U.S. 350 (decided June 7, 1920): rejects various procedural objections to the adoption of the Eighteenth Amendment: the required vote of both Houses was two-thirds of the quorum, not of the total members; the resolution did not have to say that the Amendment was “necessary”; the Amendment is not subject to Commerce Clause restrictions but is an independent part of the Constitution; it is operative in the territories; etc.

Minn v. Dickerson, 508 U.S. 366 (decided June 7, 1993): during a stop and frisk, police officer was attracted to lump in man’s pants and felt it up; it turned out to be cocaine, but he needed a warrant to do that because he already knew it wasn’t a gun (let the jokes begin)

Republic of Austria v. Altmann, 541 U.S. 677 (decided June 7, 2004): suit can proceed for recovery of paintings taken by Nazis (later discovered in Austrian art gallery) as allowed by Foreign Sovereign Immunities Act even though claim arose before FSIA was enacted in 1976 and even before suit against foreign nations was first allowed by Court in 1952

Savage v. Jones, 225 U.S. 501 (decided June 7, 1912): state law requiring inspection of animal feed is valid exercise of police powers and does not violate Dormant Commerce Clause even though “incidentally affects interstate commerce”

Murphy v. California, 225 U.S. 623 (decided June 7, 1912): local ordinance forbidding pool halls does not violate Equal Protection of pool hall owner and was permissible use of police power despite lack of evidence that it was a corrupting influence, because they’ve got Trouble with a capital T and that rhymes with P and that stands for Pool

[F.D. Wolf]

The congressional districts in Colorado General Assembly v. Salazar had indeed been drawn just the previous year - drawn by a state district court. After the 2010 Census, Colorado gained a congressional district. The legislature failed to redistrict before the 2012 elections, so a state district court drew the districts, and that redistricting was affirmed by the state supreme court. (I'm unsure exactly how the state failed to draw a map, as the districts were ostensibly to be drawn by an independent redistricting panel.)

Regardless, after the 2012 elections, the legislature passed a new map, which was signed by the governor. State Attorney General Ken Salazar (later U.S. Senator, Obama's Interior Secretary, and currently Biden's Ambassador to Mexico) filed suit in the state supreme court to block the use of the new districts. The court sided with Salazar, holding, yeah, sorry, that map the state district court drew counts as the "one map per decade" permitted by the state constitution.

[Mr. Bumble]

Will the question of redistricting ever be satisfactorily resolved?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

As for equal representation, could be ...

Every representative casts not one vote in the legislature, but as many votes as there were in their election. It uses votes as a relatively equal proxy for people, and would be unfair if that ratio differs among the districts. But it also encourages people to vote; their votes do actually make a difference, albeit small.

Then modify that so you elect the top three winners in each district, and they proxy only what votes they won, not the entire vote. Now they actually are representatives, and there's no more pretense that they represent voters who expressly voted against them.

Finally, let every voter submit a name, and after voting, choose one at random to be a fourth legislator, proxying all the leftover votes. Better to be represented by someone disruptive than be disenfranchised. Since their candidates lost, they were voting for change more than anything, and someone like this amateur is more likely to be disruptive than the three winners.

[Krayt]

Gun rights use penumbras all the time, even if it’s not called that. The right to keep and bear arms implies the right to ammo, the right to sell, the right to transport, which have all been independently attacked as not included.

Free speech, IIRC, now includes the implied right to publish and distribute directly, and not just via “press”, mechanical or institution.

[Dan Schiavetta]

Thanks everyone for your contributions!

[JoeFromtheBronx]

Prof. Melissa Murray wrote an interesting (short) article on another Connecticut contraceptive case concerning a young couple who argued they needed contraceptives to live the equalitarian values of their relationship.

https://www.yalelawjournal.org/pdf/MurrayPDF_iyfnw4ya.pdf

[Dan Schiavetta]

Thanks for this.

The practical (if not ideological) effect of “the Pill” was huge. It liberated women from the constant risk of pregnancy. Maybe a knee-jerk objection to female equality was one of the things that motivated Paul VI to issue the disastrous “Humanae Vitae” in 1968. Had he left matters to his Birth Control Commission (which overwhelmingly recommended allowing its use among married couples) the complexion of the Church and the impact of contraception on society would have been much different. Instead, millions of married Catholics using the Pill were suddenly told they had been committing a mortal sin, and contraceptive use became associated with promiscuity and rebellion instead of with churchgoing, responsible marriage.

As for the article linked to, I don’t think female equality was as much a winning argument in 1965 as was the right to privacy.

[Dilan Esper]

I think Griswold is a lot like Bruen, in that the worst justice who could possibly have written the opinion was assigned it. So instead of Harlan's clean fundamental rights jurisprudence (which is where the Court ended up anyway, because everyone on the Court knew Douglas was an idiot), we get penumbras and emanations.

The problem isn't that there aren't penumbras: there surely are. (For instance, free association is a penumbral right of free speech.) But the test for whether something is an unenumerated right can't be whether Justice Douglas can draw stupid strained analogies between the claimed right and the Third Amendment. It has to be some combination of Palko (implicit in the concept of ordered liberty) and Snyder (so rooted in our traditions so as to be fundamental).

[Dan Schiavetta]

It's a problem that we see in a number of Supreme Court cases, where it's obvious what the result has to be, and the question is by what rationale to get there.

[JoeFromtheBronx]

Yes, the same is true in Roe v. Wade.

The argument was ahead of its time.

There was also a privacy argument mixed in -- the right of the couple to live their lives as they saw fit.

[JoeFromtheBronx]

Griswold v. Connecticut included limited analysis but it has more analysis than people often give it credit for.

The opinion includes many citations to past cases that spoke of a right to privacy. The one footnote cited a seminal case that provided an open-ended understanding of the Fourth Amendment"

"they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life"

Justice Harlan in his more expansive Poe v. Ullman opinion references multiple cases that protected a right to privacy. He cites among other things the Third Amendment.

(Douglas in Poe -- and Goldberg in his separate opinion cites this -- had a more open-ended understanding of privacy. He argued privacy was necessary for "liberty" in a free society.)

Douglas' penumbra language (other justices used the word "penumbra") is an overly fancy way of voicing a well-accepted principle. Brennan in another case handed down about the same time (Lamont v. Postmaster General) said it this way:

"the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful"

Anyway, the overall principles were expressed by many other opinions, both at the Supreme Court level and elsewhere. This includes a line of cases where family life had special protection.

Some of this felt like "substantive due process," which an old liberal like Douglas associated with economic regulations. He tried to tie it to enumerated rights in Griswold. Nonetheless, even he in many other cases had a more open-ended approach.

[JoeFromtheBronx]

An expansive opinion could have provided more analysis of how the different amendments cited have a privacy component and how privacy is necessary to protect a private sphere of life.

The draft originally focused on a right to association, marriage being a type of private association that promotes values in various respects. Intimate association was protected in later opinions.

Thus, the opinion focuses on First Amendment cases, including one that protected privacy rights in the association context. One case involved radio broadcasts in a streetcar; the Court in passing noted the home would be different since that's private.

Brennan suggested a more expansive approach. So, Douglas added some more analysis, primarily citing Fourth Amendment cases that spoke of a right to privacy.

The string citation to the Third, Fifth, and Ninth was bare, except for a reference to a law article or two.

But, it would not have been hard to expand the point. The Third Amendment historically protected the privacy of the home.

The Self-Incrimination Clause has multiple purposes, including protecting the privacy of the person (from torture) and private life (forced confessions often were used to compel testimony of religious and political views). The case law cited such things.