Overruled

by Damon Root

  In a separate concurrence, Justice Arthur Goldberg, joined by Chief Justice Earl Warren and Justice William Brennan, agreed that the law “unconstitutionally intrudes upon the right of marital privacy,” but instead rested the case more squarely on the language of the Ninth Amendment, which holds, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” As Goldberg saw it, privacy was clearly among those unenumerated rights retained by the married people of Connecticut. “Although the Constitution does not speak in so many words of the right of privacy in marriage,” he wrote, “I cannot believe that it offers these fundamental rights no protection.”41

  Meanwhile, two other justices, John M. Harlan and Byron White, each filed their own separate concurring opinions that rejected the penumbras approach entirely and ruled against the law solely under the Due Process Clause of the Fourteenth Amendment. In short, the Court’s liberal majority very much wanted to recognize a constitutional right to privacy, but the justices could not reach any sort of broad agreement over the proper method for doing so.

  Why the disarray? Consider again the central proposition of Footnote Four from the 1938 Carolene Products decision. It said that the Supreme Court may only engage in “exacting judicial scrutiny” when the law under review appears to violate a specific provision of the Constitution, interfere with the political process, or discriminate against “discrete and insular minorities.” Simply put, Connecticut’s intrusion on marital privacy failed42 to clearly satisfy any one of those three separate tests, leaving the justices scrambling for a fix.

  Douglas in particular struggled to meet the requirements of Footnote Four. Keep in mind that Carolene Products was written in large part as a reaction to cases such as Lochner v. New York, which struck down a maximum working hours law for bakery employees, and Adkins v. Children’s Hospital, which struck down a minimum wage law for women. In each of those cases, the Supreme Court had nullified an economic regulation for violating the unenumerated right to liberty of contract, a right the Court first located in the Fourteenth Amendment’s guarantee that no person be deprived of life, liberty, or property without due process of law. Yet as Chief Justice Charles Evans Hughes had declared in West Coast Hotel Co. v. Parrish, the 1937 case that overruled Adkins and effectively killed Lochner, “The Constitution does not speak of freedom of contract,”43 and therefore the Supreme Court would neither recognize it nor protect it. Well, the Constitution does not speak of privacy either, and according to both Parrish and Footnote Four, that textual absence was a big problem for Douglas and his Griswold opinion.

  Nor did Douglas do himself any favors when it came to the crafting of his legal arguments. On the one hand, he began his opinion by repudiating the liberty of contract line of cases. “Overtones of some arguments suggest that Lochner v. New York should be our guide. But we decline that invitation,”44 he wrote. Yet just two paragraphs later, Douglas proceeded to follow Lochner anyway when he cited two precedents from the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, in which the Supreme Court relied directly on Lochner’s expansive protection of liberty in order to reach its respective holdings. In Meyer, for instance, Justice James C. McReynolds nullified Nebraska’s ban on teaching young students in a foreign language on the grounds that it interfered with the economic liberty of a Bible teacher who worked at a private school. “Without doubt,” McReynolds wrote, citing Lochner, the liberty protected by the Fourteenth Amendment “denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life . . . and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”45 Two years later, in Pierce, McReynolds extended that libertarian principle to overturn Oregon’s Compulsory Education Act, which had forbidden parents from educating their children in private schools. “The child is not the mere creature of the state,”46 McReynolds declared. Whether Justice Douglas wanted to admit it or not, Lochner’s DNA is plainly evident in his Griswold opinion.

  “I Like My Privacy As Well as the Next One”

  For Justice Hugo Black, enough was enough. Griswold was a Lochner-ian ruling, and Black had no qualms about denouncing it as such. An ardent New Dealer when he joined the Supreme Court in 1938, the former Alabama senator was outraged by the reappearance of those old legal arguments on behalf of new unwritten rights. “I like my privacy as well as the next one,” Black declared in his Griswold dissent, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”47

  That remark captures Black’s entire jurisprudence in a nutshell. Nobody’s idea of a judicial pacifist, Black would only countenance judicial review in those cases where he thought the law at issue conflicted with an express guarantee of the Constitution. “When judges have a constitutional question in a case before them, and the public interest calls for its decision,” he would announce, “refusal to carry out their duty to decide would not, I think, be the exercise of an enviable ‘self-restraint.’ Instead I would consider it to be an evasion of responsibility.”48

  In fact, when it came to the protections spelled out in the Bill of Rights, Black took a nearly absolutist position in favor of judicial intervention. In his famous 1947 dissent in Adamson v. California, for instance, Black argued that not only should the Fifth Amendment’s safeguard against self-incrimination be strongly defended against the actions of a state government, the entire Bill of Rights should be applied to the states and aggressively enforced by the federal courts. As for the First Amendment, Black took an even harder stance. “Courts must never allow this protection to be diluted or weakened in any way,” he maintained. The First Amendment means exactly what it says, and that meaning must be protected by the courts, “without deviation, without exception, without any ifs, buts, or whereases.”49

  But when it came to the judicial enforcement of unenumerated rights, Black drew a bright line in the opposite direction and simply refused to cross it. “I cannot accept a due process clause interpretation which permits life-appointed judges to write their own economic and political views into our Constitution,”50 he argued, thereby linking the Court’s ruling in Griswold to its previous decision in Lochner. Indeed, Black’s Griswold dissent took direct aim at Douglas’s use of the libertarian precedents set in Meyer and Pierce, “both decided in opinions by Mr. Justice McReynolds,” Black noted, “which elaborated the same natural law due process philosophy found in Lochner v. New York.” That approach, he told his colleagues, “is no less dangerous when used to enforce this Court’s views about personal rights than those about economic rights.”51

  Much like Learned Hand and Felix Frankfurter, Hugo Black never forgot his outrage over the Supreme Court’s earlier use of the Fourteenth Amendment to attack Progressive and New Deal era legislation. “There is a tendency now among some,” Black observed in 1968, “to look to the judiciary to make all the major policy decisions of our society under the guise of determining constitutionality. . . . To the people who have such faith in our nine justices, I say that I have known a different court from the one today. What has occurred may occur again.”52

  Unhappily for these old-line Progressives, however, the call for judicial deference fell on increasingly deaf liberal ears as the twentieth century entered its seventh decade. But there was at least one person paying careful attention to what they had to say. At Yale Law School, a young professor named Robert Bork began dusting off the Progressive case for judicial restraint and refurbishing it into an intellectual weapon he might wield on behalf of conservative legal goals.

  Majorities Rule

  Here’s a surprising fact about Robert Bork: The famous arch-conservative initially welcomed the Supreme Court’s decision legalizing birth control in Griswold v. Connecticut. Born in Pittsburgh, P
ennsylvania, in 1927, Bork received an undergraduate education at the University of Chicago and then stuck around on campus to attend law school, graduating with a law degree in 1953. At that time, the University of Chicago was first solidifying its reputation as a bastion of free-market thought, thanks in large part to the work of economics professor and future Nobel Prize winner Milton Friedman, who championed minimal government interference in all aspects of economic (and private) life and famously blamed federal policies rather than capitalist excesses for causing the Great Depression.53 Bork’s encounter with those ideas initially made him into something of a libertarian, and he began applying the insights of free-market economics to the field of antitrust law when he took up his professorship at Yale Law School in 1962.

  The academic world of Yale introduced a decisive new influence on Bork’s thinking, that of his law school colleague Alexander Bickel. A former law clerk to Justice Felix Frankfurter, Bickel was a brilliant and persuasive advocate of Progressive-style judicial restraint. In his 1962 book The Least Dangerous Branch, for instance, Bickel described judicial review as a “counter-majoritarian force in our system” and therefore a “deviant institution” that required stringent justification before use. “When the Supreme Court declares unconstitutional a legislative act or the action of an elected executive,” he wrote, “it thwarts the will of representatives of the actual people of the here and now.”54 As a result, Bickel advocated a very modest role for the courts, urging judges to practice “the passive virtues”55 and to avoid disruptive confrontations with the elected branches of government whenever it was remotely possible to do so.

  “I taught a seminar with Professor Bickel starting in about 1963 or 1964,” Bork would later recall. “We taught a seminar called Constitutional Theory. I was then all in favor of Griswold v. Connecticut.” As Bork then saw it, if the courts would only ground their reasoning in the principles of individual autonomy that served as the foundation for the Bill of Rights, new rights such as privacy might be properly recognized and defended by the judiciary. “I did that for about 6 or 7 years,” Bork remembered, “and Bickel fought me every step of the way; said it was not possible. At the end of 6 or 7 years, I decided he was right.”56 That decision transformed Bork’s career and changed the future of American law.

  Bork went public with his case against Griswold in a 1971 article for the Indiana Law Review titled “Neutral Principles and Some First Amendment Problems.” It remains one of the most influential and frequently cited law review articles to appear in the last four decades. It also set the tone for all subsequent conservative attacks on liberal judicial activism. The “proper role of the Supreme Court under the Constitution” is the central question of American jurisprudence, Bork observed. “It arises when any court either exercises or declines to exercise the power to invalidate any act of another branch of government. The Supreme Court is a major power center, and we must ask when its power should be used and when it should be withheld.”57

  In Bork’s view, the Court’s power plainly should have been withheld in Griswold. “Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups,”58 he wrote, echoing Oliver Wendell Holmes’s observation that all laws are “necessarily a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else.”59 But unless the Constitution provides clear and specific guidance on how to settle each particular dispute, Bork went on, “courts must accept any value choice the legislature makes.” To hold otherwise would be to place the subjective views of the judge on a higher plane than the wishes of the people as expressed via their elected representatives. “The issue of the community’s moral and ethical values, the issue of the degree of pain an activity causes, are matters concluded by the passage and enforcement of the laws in question,” Bork maintained. “The judiciary has no role to play other than that of applying the statutes in a fair and impartial manner.”60

  Taking another page from the Progressive playbook, Bork faulted the Supreme Court for reading the tea leaves of the Due Process Clause in the hopes of divining whether or not a particular species of liberty deserves special protection from the edicts of the majority. What makes “sexual gratification more worthy than economic gratification?” he asked. Absent a clear answer drawn from an unequivocal constitutional provision, “the only course for a principled Court is to let the majority have its way.”61

  Bork also connected the dots between Lochner and Griswold, arguing that both cases relied on the same flawed reading of the Due Process Clause as a protector of substantive liberty against the will of the majority. “Substantive due process, revived by the Griswold case, is and always has been an improper doctrine,” Bork declared. “This means that Griswold’s antecedents were also wrongly decided,” he went on, pointing not only to Lochner, but also to Meyer, where the Court voided a state ban on teaching foreign languages to children, and Pierce, where the Court overturned a state law prohibiting private schools. “With some of these cases I am in political agreement,” Bork added, alluding perhaps to his earlier interest in libertarianism, “but there is no justification for the Court’s methods.” Quoting directly from the majority opinion in Lochner, in a passage in which Justice Peckham had asked, “Are we all . . . at the mercy of legislative majorities?” Bork was quick to supply a response: “The correct answer, where the Constitution does not speak, must be ‘yes.’”62

  “An Extreme Individualistic Philosophy”

  While Griswold remains controversial, that dispute is nothing compared to the furor still surrounding the Supreme Court’s 1973 opinion in Roe v. Wade. In Roe, a seven-to-two majority extended the right of privacy first recognized in Griswold to cover a woman’s decision to terminate her pregnancy. Four decades later, the battle over that decision continues to rage, with no end in sight.

  The case originated in Texas, where a state law criminalized all abortions except in those instances where the life of the mother was at risk. In his opinion for the Court, Justice Harry Blackmun struck down that prohibition and replaced it with a tripartite system for determining the permissible scope of state regulation. In effect, Roe held that a woman may have an abortion for any reason during the first three months of her pregnancy. During the next three months, up to the point of fetal “viability,” the state legislature may impose some additional regulations so long as they “are reasonably related to maternal health.”63 Finally, during the final trimester of pregnancy, the state may regulate “and even proscribe” abortions, except when “the preservation of the life or health of the mother”64 is at stake. “This right of privacy,” Blackmun wrote, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it to be, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”65

  Writing in dissent, Justice William Rehnquist, who would later serve as chief justice, chastised the majority for distorting the Constitution in order to advance its liberal agenda. “A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word,” Rehnquist observed. The real question was whether or not “the claim of a person to be free from unwanted state regulation of consensual transactions”66 counts as a form of protected liberty under the Fourteenth Amendment. If it does, Rehnquist continued, then the majority’s holding is “closely attuned to the majority opinion of Mr. Justice Peckham” in the Lochner case, where a substantive interpretation of the Due Process Clause was similarly deployed on behalf of an unenumerated individual right. The Court’s approach in Roe, he concluded, “partakes more of judicial legislation”67 than it does of principled judicial review.

  Robert Bork agreed wholeheartedly. Roe, he declared, was “the greatest exampl
e and symbol of the judicial usurpation of democratic prerogatives in this century,” and therefore “should be overturned”68 as soon as possible. At least in Griswold, “spurious as it was,” he wrote, the Supreme Court “seemed to confine ‘the right of privacy’ to areas of life that all Americans would agree should remain private,” such as the marital bedroom. Roe made no such effort to cabin the impact of its reasoning. Operating under the spell of “an extreme individualistic philosophy,” Bork wrote, the Supreme Court was now asserting “that society, acting through government, had very little interest in such matters.”69 As Bork saw it, society, acting through government, had every interest in such matters of morality, and if any member of the public happened to disagree with the current crop of legislation dealing with sexual and reproductive matters, the only recourse was to vote his or her particular moral preferences into law at the next election. As for the judiciary, its only role was to interpret the laws made by the majority, not to make any new laws of its own devising. “Judges who vigorously deny elected representatives the right to base law on morality, simultaneously claim for themselves the right to create constitutional law on the basis of morality, their morality,”70 he observed.