Privacy and Equality Part I: William O. Douglas and the Right to Privacy

I’ve been meaning to write about Jill Lepore’s piece on privacy and equal protection. As a setup, recently in comments Dilan gave us the solidifying consensus of a certain kind of liberal law professor, along with some idiosyncrasies:

Douglas’ Griswold opinion is “very smart” only if your definition of “very smart” is “makes no attempt whatsoever to actually interpret the text of the Constitution”.

There’s a reason that Harlan and Goldberg and White all distanced themselves so dramatically from Douglas’ opinion. It was STUPID! Really one of the worst pieces of judicial craft in the history of the Supreme Court.

Douglas actually argued that the right ot privacy was in the Constitution because it was part of NATURAL LAW! That’s wrong on two and a half counts– the Constitution does not incorporate natural law, there is no privacy in the state of nature anyway (it’s a product of modern societies), and many natural law theorists think contraception violates natural law, not invasions of privacy (which is why it is really good that William O. Douglas was a complete idiot whose own colleagues didn’t even take seriously and his natural law argument never became any sort of an important court precedent).

Scott, Griswold’s result was correct. But Douglas’ work product, as it basically always was, was completely intellectually bankrupt as constitutional interpretation. And I certainly don’t want any court determining that rights not written into the Constitution are in there anyway because some judge with a third rate intellect declares them “older than the Bill of Rights”.

I don’t think Bill Douglas cared one bit what the Constitution actually said, and I also don’t think Douglas’ colleagues cared one bit what he actually wrote. Griswold is on much firmer footing now– not tied to marriage, located as a straightforward substantive due process right to privacy– but that happened because later courts ignored everything Douglas said.

A few observations:

• The first of two massive howlers here is the assertion that Douglas was a “complete idiot.”  Douglas — a path-breaking legal academic, FDR’s head of the SEC, and the author of many books — was a brilliant, erudite man.  It’s true that he was widely disliked by his colleagues, but this is because he was an asshole, not because they thought he wasn’t bright.  And it’s true that he was a disappointment as a Supreme Court justice, but this is because he was poorly suited to the job and often didn’t take it very seriously, not because he didn’t have the ability.  Douglas was a disappointment precisely because he had the ability to be the greatest liberal justice of the 20th century but didn’t achieve it.
• While nobody who has any idea what they’re talking about thinks that Douglas was a “third rate intellect,” the idea that Douglas was a particularly bad Supreme Court justice is becoming much more widespread.  I think there’s some truth to it, but I think the understandable goal of knocking him off of his pedestal has gone a little far in the other direction.  Was he sometimes sloppy in terms of his attention to craft?   Absolutely, although this is a much more widespread flaw than many con law specialists would like to admit. (Take a stroll through some of the landmarks of the Rehnquist and Roberts Courts.  Seminole Tribe and its progeny, Bush v. Gore, Shelby County…these make Griswold look like Holmes at his best.) Was he results-oriented?  Sure, but when describing a Supreme Court justice the charge is essentially tautological.  Was he uniquely inattentive to the text of the Constitution? I see no basis for this claim whatsoever.  Unlike sometime majorities of his colleagues, for example, he didn’t think that there were “Communist” and “sexually explicit materials” exceptions to the 1st Amendment.  He was right about Congress’s enforcement powers under the 14th Amendment.  His dissent in Terry v. Ohio looks more prescient every day.   And so on.  He wasn’t close to the great justice he could have been but he had plenty of moments, and and what matters most — his votes — he was excellent. 
• On Griswold, I won’t repeat in detail what I and JoeJp said in comments, or what I’ve said elsewhere.  The tl; dr version is that Douglas’s opinion was not “natural law,” the banal recognition of the customary status of marriage is much less important to Douglas’s structuralist reading of the Bill of Rights than it is to the substantive due process of Harlan or White, and the idea that substantive due process reflects a greater attention to the specifics of the constitutional text than Douglas’s structuralism is self-refuting.
• To bring us to the issue that will be the subject of the next post, I was particularly amused by the idea that the right to privacy only gained real footing when it was taken away from Douglas’s Griswold logic and place on the much surer ground of the substantive due process.  What’s particularly funny about this is that the post-Griswold right to privacy is primarily the work of two justices — Blackmun and Kennedy — who really were/are mediocrities by the standards of Supreme Court justices.  And, infamously, the privacy opinions represent weak work even for them.  Roe‘s legal (as opposed to historical) analysis is famously cursory.  Planned Parenthood v. Casey is nearly as bad — even if, like me, you agree with the judgment at least insofar as it upholds Roe, you can’t deny that Rehnquist and Scalia score hit after hit in their dissents — “The sum of the joint opinion’s labors in the name of stare decisis and “legitimacy” is this: Roe v. Wade stands as a sort of judicial Potemkin Village, which may be pointed out to passers by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion”; “One might have feared to encounter this august and sonorous phrase in an opinion defending the real Roe v. Wade, rather than the revised version fabricated today by the authors of the joint opinion. The shortcomings of Roe did not include lack of clarity” — all true.  Lawrence isn’t quite as bad as its reputation but nobody would claim is a great work of judicial craft.  There have been some decent opinions defending the right to privacy — History’s Greatest Monster in Bolton, Stevens in Thornburgh,  Ginsburg in Carhart II — but the key landmarks are all patently inferior to Griswold as works of judicial craft.  But does it matter?  Not really, and that will be the subject of the next post.