A Cherished Right That Was Almost Never Born
WHY YOU SHOULD CARE
Privacy can often be found in the shadows. The U.S. Supreme Court found it lurking in a penumbra.
By Sean Braswell
For 50 years, thanks to the Supreme Court’s landmark decision in Griswold v. Connecticut, Americans have enjoyed a constitutional right to privacy. That right, nowhere expressly mentioned in the Constitution but now relied upon by millions, has since been invoked to cover everything from contraception to abortion to gay rights, helping to ignite a raging culture war along the way. But few realize that this right, considered by some a “bedrock principle” of American law — and one that has prevented countless unwanted pregnancies and births over the past half century — came very close to never being born.
In fact, just two months before the Supreme Court issued its controversial decision in Griswold on June 7, 1965, the embryonic right was mostly confined to the scribblings of a 66-year-old jurist. Shortly after being assigned to write the majority opinion in the case, Justice William O. Douglas, a committed civil libertarian who authored 1,164 opinions in 36 years on the Court, had sketched out a first draft — a mere six typewritten pages in length. Unlike the other justices, Douglas, as David J. Garrow covers in Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, did not rely on clerks to prepare most of his first drafts — not a problem in and of itself, except that many around the Court felt that the aging judge was showing signs of being “mentally absent” from the job.
Could such an unorthodox opinion command a majority of the court?
None of the nine men sitting on the Supreme Court thought Connecticut’s 1879 anti-contraception law, both prohibiting the use of contraceptives and abetting that use, was a sensible law (in his dissent, Justice Potter Stewart called it “uncommonly silly”). But the problem was finding something in the Constitution that agreed, a task willingly undertaken by the seven-justice majority. Douglas’ solution, cobbled together like an all-you-can-justify meal from a Bill of Rights buffet, was ingenious and somewhat laughable — and one reason Griswold has since become a lighting rod for those decrying the court’s judicial activism.
According to Douglas, the specific guarantees enunciated in the Bill of Rights “have penumbras, formed by emanations from those guarantees that help give them life and substance,” and the “right to marital privacy” violated by the Connecticut statute emanated from the “zones of privacy” created by several constitutional amendments, including the first (free association), third (prohibition on the quartering of troops), fourth (searches and seizures) and ninth (other rights retained by the people).
When Douglas’ draft opinion was circulated, says Garrow, the clerks in other chambers were shocked at how thin it was, and the references to “penumbras” and “emanations” elicited more than a few sniggers. Could such an unorthodox opinion command a majority of the court? Even Chief Justice Earl Warren, the court’s liberal lion who had assigned Douglas the opinion, was hesitant to sign on. One of Warren’s clerks, John Hart Ely, later a preeminent constitutional scholar, wrote him a 30-page memo on the case. “No matter how strong a dislike for a piece of legislation may be,” Ely counseled, “I do not think the Court should enforce clauses which are not there.”
Compounding the constitutional questions was the fact that the Supremes were all male and over age 50 — a cohort that was not exactly well-informed about, or comfortable discussing, methods of contraception. “Is the device which you are talking about here described in the record?” 79-year-old Justice Hugo Black queried during oral arguments, quickly adding, “I won’t ask you to describe it,” sparking laughter in the court.
Behind the scenes, some of the justices were surprisingly playful in discussing the case. Justice Byron White sent a teasing note to Douglas, suggesting he strike down the law on various grounds, including the Eighth Amendment, given “there is an obvious addiction to sex involved & it is cruel & unusual punishment to deprive one of it or to permit it only at the cost of having children. A grizzly choice.”
With the clock ticking, Douglas’ majority opinion had been endorsed by just one other justice (Tom Clark), with White and Justice John Marshall Harlan II electing to write concurring opinions that did not endorse the new privacy doctrine. Justice Arthur Goldberg, however, was writing a concurrence, joined by Justice William Brennan, that endorsed Douglas, giving him four votes. Facing a court without a majority behind the majority opinion, Earl Warren, a former politician not averse to forging untidy compromises, agreed to join Goldberg’s opinion, giving Douglas a majority without personally signing on to his colleague’s constitutional handiwork.
And so, as Connecticut spouses engaged in legal, protected sex for the first time in almost a century, the right to privacy was born, fathered by a very loose consortium of men. Eight years later, the court would hang its pivotal decision on abortion in Roe v. Wade largely on Griswold. And, for better or worse, we are still living in the shadow, or at least the penumbra, of Griswold today.