Since the first time Mitt Romney ran for President, four years ago, he’s been on record reversing his previous support for abortion rights. However, when pressed by George Stephanopoulos in the debate Saturday night, Romney went beyond mere opposition to Roe. He said he thought Griswold v. Connecticut, the 1965 case that first made explicit the right to privacy, was also wrong. “I don’t believe they decided that correctly,” Romney said. In this, the front-runner was eagerly seconded by Rick Santorum, who said the Justices “created through a penumbra of rights a new right to privacy that was not in the Constitution.”
In Griswold, the Court ruled that a Connecticut law banning the sale of contraceptives, even to married couples, was unconstitutional.
.. And that is what makes Romney and Santorum’s criticism of Griswold so troubling. Over the years the modern Republican Party has reflected both libertarian and authoritarian tendencies. Both survive, in a way. When it comes to taxes and regulation, the libertarian side of the party is ascendant. Even the rhetoric of compassionate conservatism has faded from view. But with regard to civil liberties, the G.O.P. has embraced state power with a vengeance. Whether it’s the rights of wartime detainees, or abortion rights, or the rights of gay people to marry (or to be free from discrimination), contemporary Republican leaders reflect clear moral disapproval. (Even Ron Paul, who is often described as a libertarian, is a fierce opponent of a woman’s right to choose abortion. And Rick Perry recently announced that he’s against a right to abortion even in cases of rape or incest.) Privacy is often described as “the right to be left alone,” but that’s not a value that seems terribly important in the G.O.P. right now.
Trump Blows Away a Penumbra
In fact, the threat to Democratic political rule is even bigger than Roe, which was about just one thing. What is at risk is the rationale for judicial overreaching that was created in the court’s 1965 decision, Griswold v. Connecticut.
Supreme Court decisions don’t often produce phrases that enter the vocabulary of political life, but Griswold did. The phrase is “penumbras formed by emanations.”
Griswold is worth recalling because it established a right to privacy, though the Constitution says nothing about any such right. Justice William O. Douglas famously explained how this could be, arguing that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Douglas’s “penumbras” decision, though ridiculed, defined the post-’60s era of “judge-made law,” in which achieving a result that reflected liberal values or policy goals mattered more than the legal reasoning to justify it.
.. Having all but abandoned the legislative branch to achieve their goals, progressives now think the Trump Supreme Court nominations will close off the judiciary as a policy tool. Thus, the hysteria.
In the Carpenter case this term, Justice Gorsuch wrote a long dissent, which didn’t mention “penumbras,” but it’s clear he knows exactly when the trouble started: “From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the ‘reasonableness’ of your expectations or privacy. It was tied to the law.” Justice Gorsuch calls judging rooted in law “the traditional approach.” I’m for it.
.. In the Carpenter case this term, Justice Gorsuch wrote a long dissent, which didn’t mention “penumbras,” but it’s clear he knows exactly when the trouble started: “From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the ‘reasonableness’ of your expectations or privacy. It was tied to the law.” Justice Gorsuch calls judging rooted in law “the traditional approach.” I’m for it.