{"id":46,"date":"2026-05-24T19:41:33","date_gmt":"2026-05-24T19:41:33","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=46"},"modified":"2026-05-24T19:41:33","modified_gmt":"2026-05-24T19:41:33","slug":"strange-judicial-bedfellows","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=46","title":{"rendered":"Strange judicial bedfellows"},"content":{"rendered":"
\n

In Dissent<\/em> is a recurring series by Anastasia Boden on Supreme Court dissents that have shaped (or reshaped) our country.<\/em><\/p>\n

Read more Court agrees to hear case on ability of employees to bring certain suits for sex discrimination, turns down child pornography reporting suit against X<\/a><\/p>\n

On Oct. 9, 1954, Justice Robert Jackson died at the apartment of his secretary \u2013 forcing the Supreme Court to issue a statement papering over the circumstances. The official release suggested that the justice had somehow managed to drive into downtown Washington and do some shopping before becoming afflicted, leading him to drive to his secretary\u2019s house for help. Many others have speculated, however, that it\u2019s more likely the justice was already there when he suffered from a heart attack, and then died \u201cin the arms of someone he loved.\u201d<\/p>\n

With that bit of scandal, Franklin Delano Roosevelt\u2019s appointees lost their majority on the court for the first time since 1940. President Dwight D. Eisenhower would go on to replace Jackson with a familiar name: John Marshall Harlan II. Grandson of the \u201cGreat Dissenter\u201d Justice John Marshall Harlan I, Harlan II proudly displayed a large photograph of his grandfather in his chambers. (As Harlan II liked to recount, upon seeing the portrait, a Japanese dignitary once remarked that he \u201cdidn\u2019t realize that the post [of Supreme Court justice] was hereditary.\u201d)<\/p>\n

Harlan was well-liked in all political and ideological circles. Appropriately, Justice David Souter, who was nominated by a Republican president but wound up siding most often with judicial progressives, cited Harlan as an influence. And even Harlan\u2019s chief ideological foe on the court, Justice Hugo Black, was also a close personal friend (and like Harlan, kept a portrait of the first Justice Harlan in his office). Black, maybe back-handedly, once said that Harlan \u201cis one of the few people who convince me that there is such a thing as a good Republican.\u201d<\/p>\n

But Harlan\u2019s many battles with Black show how unwieldly labels \u2013 particularly when they have political overtones \u2013 can be at the Supreme Court. And nowhere is this clearer than in Griswold v. Connecticut<\/em>. Harlan, the \u201cconservative,\u201d argued that the due process clause of the Fourteenth Amendment embodies a tradition of liberty \u2013 and that courts have both the power and the responsibility to enforce that tradition. In doing so, he joined the majority in invalidating Connecticut\u2019s restrictions on contraception. Black, the \u201cprogressive\u201d of the two, responded that Harlan\u2019s approach was judicial usurpation and that judges should only enforce constitutional protections that appear explicitly in the text. Whereas the \u201cconservative\u201d voted to strike the ban on contraception, the \u201cprogressive\u201d would have upheld it.<\/p>\n

I. Two very different men<\/strong><\/p>\n

Hugo Black\u2019s life was one of the most improbable in American legal history. He was born in 1886 in Clay County, Alabama far from the corridors of constitutional power. His father kept a general store and the family lived in relative poverty. He practiced law in a Birmingham firm and built a career in Alabama politics at a time when Alabama politics demanded accommodation of white supremacy.<\/p>\n

Black had been a member of the Ku Klux Klan in the 1920s \u2013 a fact he later acknowledged and called a mistake. By the time Franklin Roosevelt appointed him to the Supreme Court in 1937, he was a committed New Dealer. He brought a populist sentiment to the bench and the conviction that law should mean something fixed and knowable rather than whatever those at the top decided it meant.<\/p>\n

This required strict constitutional interpretation (a precursor to what would come to be known as \u201ctextualism\u201d). When the Constitution said that \u201cCongress shall make no law abridging speech,\u201d for example, Black believed it really meant no law <\/em>\u2013 not that courts should apply some balancing test to determine whether the law had gone too far. Conversely, he believed the First Amendment did not protect a man who wore a jacket that read \u201cFuck the draft\u201d because the man was not engaged in speech, but rather in expressive action, which was not explicitly covered by the First Amendment\u2019s text (Harlan wrote the majority opinion overturning the man\u2019s conviction; Black joined the dissent). Black argued that the Fourteenth Amendment\u2019s due process clause incorporated the entire<\/em> Bill of Rights against the states and did not believe in \u201cselective\u201d incorporation. He believed that this strict interpretation limited judicial discretion \u2013 an approach that typically led him to what are regarded as progressive outcomes, but which is now commonly associated with judicial conservativism.<\/p>\n

If Black was an improbable justice, John Marshall Harlan II was predictable. He was the grandson of the famous \u201cGreat Dissenter\u201d who alone opposed the Plessy v. Ferguson<\/em> majority in 1896. He grew up in comfort and was educated at Princeton, then at Oxford as a Rhodes Scholar, then studied law in New York. He practiced corporate law at a distinguished Wall Street firm, won a Legion of Merit for his service in World War II, served as chief counsel to the New York State Crime Commission, and was appointed by Eisenhower to the U.S. Court of Appeals for the 2nd Circuit in 1954 and then to the Supreme Court the following year.<\/p>\n

Harlan was, in background and temperament, everything Black was not: patrician, cautious, institutionalist, deeply respectful of precedent and judicial craft, and a strong defender of unenumerated rights (that is, rights not explicitly expressed in the Constitution). He believed the common law tradition was a constitutional resource for judges. The due process clause\u2019s protection of \u201cliberty\u201d was not a blank check, but it also wasn\u2019t limited to the specific rights enumerated in the first 10 amendments. Harlan\u2019s flexible approach meant that he would protect more liberties than Black would, but with less rigidity. Thus though commonly called a judicial conservative (likely because of his occasional sympathy to economic freedom and strong defense of federalism), he employed an approach closer to living constitutionalism.<\/p>\n

Harlan and Black were frequently at odds. Whereas Black joined the majority in New York Times Co. v. United States<\/em>, ruling that the Nixon Administration could not prevent the media from publishing the Pentagon Papers, Harlan joined the dissent, reasoning that the First Amendment had to give way to national security. Black also joined the majority in Mapp v. Ohio<\/em>, where the court applied the Fourth Amendment\u2019s exclusionary rule (barring the use of illegally obtained evidence) to the states, and Pointer v. Texas<\/em>, where the court incorporated the Sixth Amendment\u2019s confrontation clause. Harlan dissented in both. And whereas Black joined the majority in Miranda v. Arizona<\/em>, which deemed a \u201cMiranda<\/em> warning\u201d constitutionally required before a defendant\u2019s self-incriminating statements can be admitted, Harlan wrote in dissent that \u201cnothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities.\u201d Harlan valued flexibility. Black valued predictability.<\/p>\n

II. Peak disagreement<\/strong><\/p>\n

In 1879, Connecticut enacted a harsh anti-contraception law, making it a crime to use any drug, medicinal article, or instrument to prevent conception, or to assist anyone in obtaining it. It was part of the broader 19th-century moral reform movement that resulted in the federal Comstock Laws (technically still in effect), which banned mailing contraceptives or related information across state lines. Connecticut was the only state in the nation that criminalized not just the provision of contraceptives, but their very use.<\/p>\n

Perhaps because it applied to couples behind closed doors, in practice, this law was almost never enforced \u2013 which made it rather difficult for people to challenge. In 1961, in Poe v. Ullman<\/em> \u2013 an earlier challenge to Connecticut\u2019s contraceptives law \u2013 the justices declined to reach the constitutional question because there was no record of enforcement and therefore, in the justices\u2019 view, no genuine case or controversy.<\/p>\n

But the law began to look increasingly archaic. Margaret Sanger had normalized contraceptive advocacy and the FDA had approved the birth control pill. This led some to try to resolve the standing problem and get Connecticut\u2019s law off the books. Estelle Griswold was the executive director of the Planned Parenthood League in Connecticut and Dr. C. Lee Buxton was a physician and professor at Yale Medical School who served as the League\u2019s medical director. In November 1961, they opened a birth control clinic in New Haven \u2013 publicly and with full awareness that they were creating a prosecutable case. They counseled married couples on contraception and prescribed it. Undercover officers reportedly visited the clinic posing as patients, and after just 10 days, Griswold and Buxton were arrested.<\/p>\n

Read more Rethinking a Supreme Court principle used to undermine the Voting Rights Act<\/a><\/p>\n

In court, the pair argued that the law arbitrarily deprived them of liberty. But once the case reached the Supreme Court, the justices wanted the parties to be more specific. At oral argument, the justices searched for some constitutional foothold in the text. Was there an equal protection problem, they asked, since the law allowed contraception for medical purposes but not for family planning? The attorney responded that he had not made any such claim.<\/p>\n

Black was blunt about what he saw as the challengers\u2019 true ask: \u201cIt seems to me what someone has done here deliberately is to try to force a decision on the broadest possible grounds of the meaning of due process \u2026 and to have us weigh the facts and circumstances as to the advisability of a law like this, rather than leave it up to the legislature.\u201d When Black continued to probe which provision of the Constitution the attorney was relying on, he responded by pointing to several: \u201c<\/strong>We rely on the Third, Fourth, and Fifth Amendments, insofar as they embody a concept of a right of privacy, Your Honor, which are incorporated in the Fourteenth Amendment.\u201d Emerson later invoked the Ninth Amendment as well, and the First Amendment \u2013 which prompted Black to observe that this case didn\u2019t involve simple speech; it involved a physical examination and a prescription.<\/p>\n

But the government enjoyed equally tough questions. When Connecticut\u2019s attorney went as far as to argue that the state \u201ccould prevent marriage in certain people, certain groups \u2026 between idiots, say, or age in marriage,\u201d the justices asked whether there were any limits on what the state could do. Could Connecticut require that married people live in separate dormitories for men and for women except for two weeks out of the year? The attorney responded boldly, \u201cI can only say that married couples do not have freedom to do what they want.\u201d<\/p>\n

III. The decision<\/strong><\/p>\n

Justice William O. Douglas wrote for the majority. In his view, the right to privacy in marital relations was implicit in other enumerated rights, including the Fourth Amendment\u2019s right against searches and seizures, the Fifth Amendment\u2019s right against self-incrimination and its implicit privacy concerns, the Ninth Amendment\u2019s general affirmation of unenumerated rights, and even the Third Amendment\u2019s right not to quarter troops. In his view, the \u201cspecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.\u201d<\/p>\n

At bottom, Douglas appeared to rely on the idea that it was simply inconceivable that the Constitution didn\u2019t<\/em> protect this type of intimate relationship. \u201cWould we allow the police,\u201d he asked, \u201cto search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.\u201d<\/p>\n

Justice Arthur Goldberg concurred, rooting his decision in the Ninth Amendment. While his opinion was more firmly grounded in the text and history of that amendment, he too seemed moved by the stakes:<\/p>\n

Surely the Government, absent a showing of a compelling subordinating state interest, could not decree that all husbands and wives must be sterilized after two children have been born to them. Yet, by [the dissent\u2019s] reasoning, such an invasion of marital privacy would not be subject to constitutional challenge, because, while it might be \u2018silly,\u2019 no provision of the Constitution specifically prevents the Government from curtailing the marital right to bear children and raise a family.<\/p><\/blockquote>\n

He concluded that, \u201cWhile it may shock some of my Brethren that the Court today holds that the Constitution protects the right of marital privacy, in my view, it is far more shocking to believe that the personal liberty guaranteed by the Constitution does not include protection against such totalitarian limitation of family size, which is at complete variance with our constitutional concepts.\u201d<\/p>\n

Harlan agreed that Connecticut\u2019s law was unconstitutional, but wrote separately to explain that he did not rest his decision on Douglas\u2019 penumbra theory, nor on Goldberg\u2019s Ninth Amendment analysis. The right to marital privacy, he argued, followed directly from the due process clause standing alone, which protects any values \u201cimplicit in the concept of ordered liberty.\u201d In Harlan\u2019s view, the majority\u2019s theory and Black\u2019s dissent shared the same flaw: they limited the scope of constitutional rights and judicial review by requiring some reference to an enumerated right. But the due process clause was far more sweeping than that.<\/p>\n

Harlan was also skeptical that Black\u2019s textualism actually constrained judges any more than his due process analysis. Citing the reapportionment decisions of the previous term, he argued that specific constitutional provisions were just as susceptible to \u201cpersonal\u201d interpretation as the open-ended liberty language Black distrusted. In particular, he argued that Reynolds v. Sims<\/em>, which established the principle of \u201cone person, one vote\u201d and which was joined by Black, \u201cwas made in the face of irrefutable and still unanswered history to the contrary.\u201d Harlan concluded that, as in any other area of constitutional law, \u201cjudicial restraint\u201d is possible \u201conly by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.\u201d<\/p>\n

Hugo Black, for his part, began his dissent with a concession: Connecticut\u2019s law, he said, was \u201cevery bit as offensive to me as it is to my Brethren of the majority\u201d \u2013 but he thought the court had no constitutional anchor that could justify overturning it. The majority\u2019s invocation of \u201cprivacy,\u201d he argued, was entirely unmoored:<\/p>\n

The Court talks about a constitutional \u2018right of privacy\u2019 as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the \u2018privacy\u2019 of individuals. But there is not. There are, [instead], guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities.<\/p><\/blockquote>\n

He saw both the majority and the concurrences as \u201cmerely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive.\u201d In his view, they were replacing the Constitution with their own views about what rights needed protecting, turning themselves into \u201cmembers [of] a day-to-day constitutional convention.\u201d If the Constitution needed to be updated, there was an amendment process for that. \u201cThat method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me.\u201d He concluded, \u201cI like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”<\/p>\n

IV. Afterword<\/strong><\/p>\n

History has, in complicated ways, vindicated both men. When the court overruled Roe v. Wade<\/em> in Dobbs v. Jackson Women’s Health Organization<\/em> in 2022, for example, the majority sounded, partly, in Black\u2019s critique. Justice Samuel Alito\u2019s majority opinion argued that the due process clause does not protect unenumerated rights unless they are deeply rooted in the nation\u2019s history and tradition \u2013 a formulation that tracks Harlan\u2019s method but gives it a more restrictive content, and that echoes Black\u2019s worry about unconstrained judicial discretion.<\/p>\n

So who was the conservative, and who was the progressive? Black \u2013 the former Klansman turned New Dealer, the strict textualist who voted with the civil libertarians \u2013 defies any clean category. So does Harlan \u2013 the patrician Wall Street lawyer who believed judges should reason from history and tradition to protect rights the Framers never wrote down. The lesson of Griswold<\/em> may be less about privacy than about the nature of constitutional law \u2013 or at least constitutional law at its best \u2013 where there are no \u201csides\u201d or partisan goals, but instead different judicial philosophies that can lead to more or less \u201cprogressive\u201d or \u201cconservative\u201d results depending on the case.<\/p>\n

Read more A docket in the shadow of bigger problems<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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