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Would the confirmation of Brett Kavanaugh have a profound impact on the jurisprudence of the Supreme Court? In other words, would his addition to the Court eventually have a broad and historic impact equal to that of Justice Anthony Kennedy himself? Responding to President Donald Trump’s nomination of federal appeals-court Judge Kavanaugh to the Supreme Court, Maine Republican Senator Susan Collins said that “I always look for judges who respect precedent.” She then immediately made it clear that she was referring especially to the abortion decision, Roe v. Wade (1973). New York Senator Charles Schumer, leader of the Democrats in the Senate, himself has said that he worries that Judge Kavanaugh “will repeal Roe and ACA” (the Affordable Care Act). The New York Times editorialized about the same subject. The Washington Post added that “they should also press Mr. Kavanaugh on when, if ever, the court should overturn precedents.” In his speech at the announcement of his nomination, Judge Kavanaugh himself stated that he would respect precedent.

It is not unusual for the Supreme Court to overturn its precedents. Three weeks ago, the Supreme Court overturned its 1977 Abood precedent and ruled in Janus v. AFSCME, that non-union employees cannot be forced to pay union dues. In a 5-4 opinion written by Justice Samuel Alito, the Court held that agency fees were a violation—“compelling individuals to mouth support for views they find objectionable”—of the Free Speech Clause of the First Amendment. Justice Alito said that subsequent cases had undermined Abood which itself was “poorly reasoned.” In the landmark case of Citizens United v. FEC (2010), the Supreme Court, with Justice Kennedy writing for the Court, overruled the precedent of Austin v. Michigan Chamber of Commerce (1990) because, inter alia, it was “not well reasoned,” and held that political speech funded by corporations is protected free speech under the First Amendment.

As examples, those two cases show the Supreme Court being open and unambiguous in overruling precedents. This essay will examine the integrity of the “precedents” in the contraception-to-abortion-to-same-sex-marriage line of cases beginning with Griswold v. Connecticut (1965) that are repeatedly cited by those opposing Judge Kavanaugh’s nomination. It will include consideration of the related judicial doctrines of standing, ripeness, mootness, and the larger and more important doctrine of justiciability under the “case or controversy” requirement of Article III of the Constitution.

Before Griswold

The famous case of Griswold v. Connecticut (1965) has been a milestone in both constitutional jurisprudence and American culture. However, it is likely unknown to almost everyone that before the Supreme Court began sexualizing constitutional jurisprudence in Griswold that it had rejected a prior Connecticut contraception case, Poe v. Ullman (1961) only four years earlier.

In Poe v. Ullman, Planned Parenthood was seeking to set up contraception clinics in Connecticut. It found three plaintiffs—two married women and their physician—who brought the case into court against a Connecticut criminal law prohibiting the use of contraceptives. The state of Connecticut, however, instituted no prosecution against them, and there was no record of any person ever having been prosecuted under the law. Planned Parenthood’s counsel, Harriett Pilpel, was one of two attorneys who presented the case at oral argument seeking a declaratory judgment that the Connecticut laws forbidding the use of contraceptives violated the Due Process clause of the Fourteenth Amendment by depriving them of life and property. (Attorney Fowler V. Harper, also appearing at oral argument for the plaintiffs, used Buck v. Bell (1927), the sterilization-of-the-feeble-minded decision, to argue that widely available contraception would help prevent the conceiving of the feeble-minded.)

The 5-4 Poe majority opinion, written by principled liberal Justice Felix Frankfurter and joined by the liberal Chief Justice Earl Warren, and concurred in by liberal Justice William J. Brennan, denied “the appropriateness of the issue for decision by this Court.” Justice Frankfurter cited an earlier decision of the Court that the judicial power did not embrace a situation where “a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.” This was a case of “abstract character,” Justice Frankfurter asserted, and compared it to similar “test case” on the same subject that had occurred in the Connecticut state courts. Citing the judicial doctrines of ripeness and mootness, Justice Frankfurter held that since the state had not prosecuted the plaintiffs, there was “no immediate harm” that they were susceptible to. Justice Brennan was similarly forthright about the case:

The true controversy in this case is over the opening of birth control clinics on a large scale; it is that which the State has prevented in the past, not the use of contraceptives by isolated and individual married couples.

On the possible relief provided by a declaratory judgment, a device that originally meant a finding about or a definition (“declaration”) of rights without an award of relief to any party, Justice Frankfurter cited a previous case to the effect that a declaratory judgment was not a meant “to alter the character of the controversies which are the subject of the judicial power under the Constitution.”

Two dissents argued that Court should constitutionalize sexual privacy in marriage. In his dissent, Justice William O. Douglas began to articulate the sexual-privacy philosophy that he later proclaimed in Griswold. The Connecticut law, he said, “reaches into the intimacies of the marriage relationship” and is “an invasion of the privacy that is implicit in a free society.” In the other dissent, Justice John Marshall Harlan was likewise adamant about the “intruding upon the most intimate details of the marital relation with the full power of the criminal law.” But he went on to distinguish “adultery, homosexuality, and the like” from contraception for married couples. Further distinguishing, he said that he “would not suggest that adultery, homosexuality, fornication, and incest are immune from criminal inquiry, however privately practiced.” He also endorsed the “power” of the states “to say who may marry.”

The Supreme Court in the “marital bedroom”

Four years later, in Griswold v. Connecticut (1965), Estelle Griswold, executive director of Planned Parenthood of Connecticut, prepared another test case by distributing contraceptives to married women in deliberate violation of the same Connecticut law at issue in Poe. Convicted of a criminal violation, thus curing one of the appealability deficiencies of Poe, she sought a declaratory judgment to have the law declared unconstitutional. The Court allowed Ms. Griswold to have standing beyond her own case, that is, to argue for the general right of married people to have access to contraceptives. And, of course, the original purpose and eventual impact of the case concerned that issue. The real parties in interest were married people; that is, the judicial rule against the assertion of third-party rights was ignored. In 1965, Justice Frankfurter was no longer on the Court.

In its decision, the Court ignored its holding in Poe, endorsed Justice Douglas’ privacy philosophy and ruled, with Justice Douglas writing the Court’s 7-2 opinion, with Justices Warren and Brennan joining this time, that the Connecticut law was unconstitutional because—in his now famous declaration—“specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them life and sustenance.” Those emanations compensated for the fact that neither “the right of privacy” nor even the word “privacy” itself appears in the Constitution—which meant, of course, that there had been no cases on the subject and no cases “on point” for Justice Douglas to refer to. Thus, without cases or texts of the Constitution, it can be seen that it was necessary to invent the constitutional law of “penumbras.” Connecticut was wrong to invade “the sacred precincts of the marital bedroom,” for “marriage” involves “a right of privacy older than the Bill of Rights.” Justice Douglas, unlike Justice Frankfurter in Poe, had nothing to say about the role of declaratory judgments in constitutional adjudication.

Thus, in addition to Griswold being a follow-up test case in Planned Parenthood’s continuing and successful quest to overturn state contraception laws, and the Court’s ruling on behalf of married people who, unlike Ms. Griswold herself, were not parties to the case, Griswold stands as a departure case in American constitutional law and, indeed, in American history. If the Supreme Court can rule by virtues of “penumbras” and “emanations,” it can rule about anything—and has and did, as described below. In addition, Justice Douglas’ hyper-ostentatious enunciations of a constitutional right of privacy about sexual relations, albeit in marriage—the first time that the Supreme Court had ever made a statement on that subject—became an indomitable and intimidating part of American public discourse. For, as one example, who has ever dared to publicly challenge Douglas’ declaration that it would be “repulsive” to even think about allowing “the police to search the sacred precincts of marital bedrooms for telltale signs of contraceptives?” The only mention by Justice Douglas of Poe v. Ullman was to quote his and Justice Harlan’s dissenting opinions in that case. That is, as we shall see in the same-sex marriage cases, the dissent in Poe immediately became the majority in Griswold.

“Substitute” words about “awesome” and “shocking” power

In his Griswold dissent joined by Justice Hugo Black, Justice Potter Stewart said that although the Court had referred to no fewer than six Amendments to the Constitution, it had not said “which of these Amendments, if any, it thinks is infringed by the Connecticut law.”

In his own dissent, liberal Justice Black, joined by Justice Stewart, laid out a criticism of what the Court was really doing that, in its commentary on the revolutionary change in constitutional law wrought by the Griswold majority, still serves today as a fundamental critique of judicial activism, and can be compared in its frankness only to the dissents in Windsor and Obergefell (below). He pointed out that Planned Parenthood “admittedly engaged with others in a planned course of conduct to help people violate the Connecticut law.” His description of how the Supreme Court substituted the “right of privacy” for “crucial” constitutional words has essentially been the method of the Supreme Court all the contraception, abortion, and same-sex marriage cases:

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term “right of privacy” as a comprehensive substitute for the Fourth Amendment’s guarantee against “unreasonable searches and seizures.”

And on the kind of constitutionalism:

If these formulas based on “natural justice,” or others which mean the same thing, are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is, of course, that of a legislative body…. Moreover, one would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine.

The individual right of sexual liberty

Seven years later, the “crucial word,” marriage—the basis and subject of the Poe and Griswold decisions—was cast aside in Eisenstadt v. Baird (1972), and the individual’s constitutional right of sexual liberty was created and proclaimed. William Baird, a contraception and abortion activist, had been convicted of violating Massachusetts law by distributing contraceptives without a medical license. The Court gave Mr. Baird additional standing to argue for the contraceptive rights of single persons who were not parties to the case, which was, of course, Mr. Baird’s purpose in this test case.

Writing for the Court, Justice Brennan, completing his transformation from Poe, conceded that “it is true that in Griswold the right of privacy in question inhered in the marital relationship,” but he held: “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matter so fundamentally affecting a person as the decision whether to bear or beget a child.”

In what has become a statement of the greatest significance and an anticipation of same-sex marriage, Brennan redefined marriage. The “marital couple,” he said, was no longer “an independent entity.” Instead, it was “an association of two individuals.” It took only one year to extend the individual right of privacy to include another person, the child in the womb. In Roe v. Wade (1973), the Court continued its obliteration of the rules of standing by allowing the anonymous Roe to bring the case into the federal courts.

Ms. Roe was no longer pregnant, so in actuality the case was moot and she had no standing. The Court said that it was making an “exception” to the usual rule that “an actual controversy must exist at review stages.” It had, of course, already set a “precedent” for such exceptions in Griswold and Eisenstadt.

In inventing the constitutional right to abortion, Justice Harry Blackmun, writing for the Court, put legal and constitutional analysis well into the background. Instead, his opinion concerned itself almost exclusively with a supposed historical, social, religious, scientific, and moral review of abortion. Of which two elements are noteworthy. In the long medical/scientific section of his opinion, what Justice Blackmun left out was the modern science of embryology. And, second, in his review of the history of abortion law in this country, what he left out was the fact that abortion laws started to become stricter in the nineteenth century based on the discoveries of embryology.

As for what constitutional analysis he did engage in, Justice Blackmun relied on precedents. He stated that the decision was based on the right of privacy in Griswold and Eisenstadt, but he omitted drawing any factual line from an individual’s (man or woman) right of privacy to a woman’s legal authority to abort her baby. He thus avoided any question about whether the subject matter in Roe was of a different “character” (a la Frankfurter) than the ones in Griswold and Eisenstadt. Instead of constitutional analysis, even of the  inventive kind exhibited by Justice Douglas in Griswold, Justice Blackmun, after citing Griswold and Eisenstadt, simply declared that “the right of privacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

No privacy in parenthood

Over the period of the next four years, the Court then used the right of privacy change the institutions of parenthood and the family. In Planned Parenthood v. Danforth (1976), the Court overturned a Missouri law requiring a married woman to have the consent of the baby’s father before having an abortion and requiring a single woman under the age of eighteen to have parental consent. Writing for the Court, Justice Blackmun said that the right of privacy was the mother’s, not the father’s. Concerning minor pregnant teenagers, the Court said it was “difficult” to understand how a parental veto would “enhance parental authority or control” when the minor, having got herself pregnant, was already beyond such control. Since she was pregnant, that was proof that she had exercised her own personal right of privacy, or in Justice Blackmun’s words, “the right of privacy of the competent minor mature enough to have become pregnant.” Thus did Justice Blackmun create the private constitutional right of physically mature girls to engage in sexual relations.

In Carey v. Population Services International (1977), the Court overturned New York laws that prevented the sale of contraceptives without a doctor’s prescription to persons over the age of sixteen and the distribution of contraceptives to minors under the age of sixteen. Justice Brennan, writing for the Court, said that since minors had already been granted a right to abortion by the Court in Danforth, they had the same right to contraceptives.

Privacy and precedents

Thus, the Supreme Court, in the “privacy” line of cases, usurped the legislative authority of the states over morals, marriage, parenthood, and the family, and along the way, purposely did away with the judicial doctrine that it would hear cases only from “real parties in interest.” It forever altered the most fundamental aspect of the doctrine of justiciability, that is, the kind and “character” of cases and controversies appropriate for federal constitutional adjudication as “cases or controversies.” As for “precedent,” the Court, once it had established Griswold, never overruled any previous decisions but proceeded by ignoring, contradicting, or finessing essential elements—specifically the factual predicates—of those decisions.

By relevant comparison, the Court in the same era essentially did away with another aspect of justiciability, the doctrine of the deference of the Court to legislatures concerning “political questions.” In Baker v. Carr (1962), the Court overturned its precedent in Colgreve v. Green (1946), and, over the vigorous dissent of Justice Frankfurter who argued that the decision concerned a non-judicial “political question” and violated the separation of powers, began the line of cases imposing “one person, one vote” on both the federal and the state legislatures.

Next, sexual privacy overcomes the law of marriage as the Supreme Court enunciates the foundational principle of American social and personal ethics.

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