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.