Penumbras, Presidential Immunity, and Pure Politics at the Supreme Court
For many decades, conservative judges, law professors, and political pundits ridiculed Justice Douglas' reasoning in the landmark case Griswold v. Connecticut. While striking down a statute that forbade all contraception use and prohibited doctors from giving advice about contraception, Justice Douglas relied on six constitutional provisions to find a right to privacy in the Constitution because "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." A few years later, Roe was based on the right to privacy.
The disgust on the right for Douglas' penumbras and emanations reasoning has been severe, often cruel, and always dismissive. One commentator observed that "perhaps the most important and puzzling spatial metaphor in American constitutional law is Justice Douglas' 'penumbra' from Griswold v. Connecticut."
In one of the most famous law review articles ever written, Robert Bork, then a law professor, compared constitutionally protecting the non-textual right to privacy to people raising constitutional objections to paying higher prices for electricity from a public utility. He said there was no way to objectively say one claim was more important than the other. He criticized Douglas' reasoning in Griswold as follows:
The Griswold opinion fails every test of neutrality. The derivation of the principle was utterly specious, and so was its definition. In fact, we are left with no idea of what the principle really forbids. Derivation and definition are interrelated here. Justice Douglas called the amendments and their penumbras "zones of privacy," though of course they are not that at all. They protect both private and public behavior and so would more properly be labelled "zones of freedom." If we follow Justice Douglas in his next step, these zones would then add up to an independent right of freedom, which is to say, a general constitutional right to be free of legal coercion, a manifest impossibility in any imaginable society.
A consistent talking point at Federalist Society conferences and among constitutional conservatives over the last forty years has been the alleged absurdity of the penumbras and emanations language in Griswold. Of course, most people think that states should not be banning contraception, but the right to privacy was the cornerstone of Roe, and that put a huge target on the back of this metaphor. Professor Robert Dixon wrote: “The actual result of Griswold may be applauded, but was it necessary to play charades with the Constitution?” Another has said, "Griswold, though plainly an incidence of judicial activism, was not an unpopular decision."
The penumbras language from Griswold, whatever folks thought about the ultimate holding, became the most important symbol to legal conservatives of the alleged overreaching and judicial activism of the Warren Court. Most law students in the 1980's and 1990's would likely have heard from conservative professors that Griswold was a terrible decision and an interpretative abomination because of the penumbra language. Those students are today's judges and academics.
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