The Pantheon of Bad Supreme Court Decisions Timothy Gordon

In an era when the Lochner decision is fairly getting another look—just as the 2012 Republican primary seems to have reoriented political discourse in this country to a sane, comparatively consanguine conservative-libertarian interchange—one considers a new summary view of the “worst” all-time Supreme Court decisions.  By virtue of the fact that libertarians and even some conservatives can make a reasonable argument in defense of Lochner (a la Bernard Siegan, Richard Epstein, libertarian jurisprudes everywhere, etc.), it can at least be ceded that it does not belong in such a Pantheon of Shame of all-time worst decisions, where liberals have tried to relegate it.  Regardless of how one ultimately feels about Lochner, one can agree that at the least, it’s arguable.  

There exists a sufficient number of cases, on the other hand, with zero reasonable defenses as to render those with even one or two (like Lochner, at its most uncharitable impression) unwelcome in such a Pantheon.  In Lochner’s vacant place, I hereby recommend one such zero-arguments-for case, Griswold v. Connecticut (1965), where the “right to privacy” was fabricated with more outright, ad hoc, imaginative judicial creativity than even usually applied by the Court’s mild extrapolative flourishes, thus adding privacy to the fundamental rights enshrined by the Constitution.  And of course, without Griswold, there could be no Roe.

At the first Republican primary debate in New Hampshire a couple weeks back, Griswold came up.  The stars did not come out to play.  Shamefully, Romney seemed not to even know that Griswold’s fact pattern was not historically “irrelevant,” or, for that matter, what the implications of discrediting a right to privacy (as he regularly does) would be: specifically, one of these implications would be that Connecticut indeed had the right to outlaw contraceptives.  It’s this simple: if one fails to believe that there exists a fundamental right to privacy enshrined in the Constitution (as Romney claimed), then one advocates the view that any one (or more) of the fifty states enjoys the right to pass whacky, outlier legislation (as Romney denied…sort of). 

In the spirit of debate—now with primary results from three states decided—let’s analyze Griswold briefly, and expose just how stupid a judicial holding it came to represent.  Stupid, that is, such as to justify its rightful place in the Pantheon of Stupid Cases. 

In Justice Douglas’s majority opinion, it is claimed (in one of the silliest turns of phrase in the history of language) that the right to privacy is synthesized by “penumbras created by emanations” of the highly specified rights conferred by the 3^rd, 4^th, 5^th, and 9^th amendments, mixed with the 14^th amendment.  Now, trust me, this is worth the time spent on fully teasing out just what dreck he’s trying to fashion into a plausible or even semi-plausible argument:  that the rigorous specificity of the rights ensuring against quartering soldiers during peace and against unreasonable searches and seizures, and ensuring the due process (in the 5^th and 14^th) of law, aggregates in a completely non-specific summary right to privacy in all acts. 

In other words, when someone tells you a particular thing is important to her—a song, say—Justice Douglas tells us that you should explain to her that all songs must thereby be important to her.  (Right?)  This of course, completely goes against the idea of something being special.  In still other words, when your mother gives you a shopping list (e.g. “quart of milk, loaf of bread, and a stick of butter”), she has actually mandated that you purchase at the store ALL foods.  Don’t trust your own lying common sense, trust Justice Douglas, whose reasoning implies thus:  well, Mother’s shopping list named all these instances of foods, and from her painstakingly specific enumerations, I gathered faithfully that she wanted me to purchase all foods.

Makes sense, right?

The whole history of Aristotelian metaphysics (i.e. the treatise on genus/species and universals/particulars) crumbles before Douglas’s rationale.  If someone says he’s in the mood for one specific type of thing—a certain food, say—he must really be saying he has a hankering for any/all members of the genus referenced.  I admonish my reader: try this on your wife or girlfriend the next time she names something in any capacity of life that bears specific mention!  Hot water landed in, you will be (in Yodan).  All language trembles before the destructive force of a superlatively bad judicial decision.  Griswold has earned stripes of precisely that quality: i.e. superlatively idiotic.

If you’re thinking that perhaps Justice Goldberg or Justice Harlan—both of whom wrote concurring opinions—saved the ship with their concurrences by supplying the missing right reasons for a poorly premised, yet right conclusion, don’t.  Their concurrences are equally befuddling.  Goldberg comes to the same conclusion by excising the part of Douglas’s rationale that makes reference to the 3^rd, 4^th, or 5^th amendments.  But it still forwards a notion like the bizarro “emanations” idea (only from an shortened set of listed rights???).  Also, it includes the idiotic idea that rights are circumscribed by a mutable “collective conscience”—obviously a favorite position of the postmodern Left—which, I believe, erodes the entire Western idea of what a right is: immutable!  (That topic’s for another day!)  Justice Harlan in his concurrence pares down the list of rights, from which the overarching privacy right supposedly derives, even further—basically to just the fourteenth.  And like Justice Douglas mentions in his majority opinion, the fourteenth amendment’s “due process” that Harlan centers his argument around is not the “procedural” (i.e. real) due process that you’d expect from someone so smugly dismissing Lochner (assuring us boldly that THIS IS NOT LOCHNER!), but rather “substantive” due process, which idea is the very creature of Lochner!  In other words, how in the world does this case not rely heavily on Lochner?!  (“Substantive due process,” for those who don’t know, is a fancy way of saying “made up judicial garble created by Lochner.”)

As Scottie Pippen, Art Garfunkel, John Oates, and DJ Jazzy Jeff can attest, it is quite difficult in life to become the very best at something, no matter how much time has been spent on perfecting that craft.  One always seems to fall short of first.  Congratulations then are due to Justice Douglas, because he has drafted the—bar none—dumbest judicial opinion (and I’ll even broaden the genus a bit: written argument) ever crafted by the judicial hand, a “crooked timber out of which no straight thing ever grew.” 

Comments

[dearieme]

The notion that “penumbras created by emanations” from a Constitution can guide a court is a riddle, wrapped in a mystery, inside an enigma.

[Thomas]

The Griswold fact pattern is historically irrelevant. Not only was the statute not enforced at the time of the case, it wouldn't be adopted in law in any state today. To say that the states have the power to ban contraception isn't to describe something meaningful.

[boldface]

I wonder what might be the penumbras created by emanations from the Second Amendment?

[StephanieandTimothy Gordon]

I think the penumbras created by emanations from the Second Amendment are C-10's, Tek-9's, and M1a's.