In Dissent is a recurring series by Anastasia Boden on Supreme Court dissents that have shaped (or reshaped) our country.
On October 9, 1954, Justice Robert Jackson died at the apartment of his secretary – 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’s house for help. Many others have speculated, however, that it’s more likely the justice was already there when he suffered from a heart attack, and then died “in the arms of someone he loved.”
With that bit of scandal, Franklin Delano Roosevelt’s 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 “Great Dissenter” 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 “didn’t realize that the post [of Supreme Court justice] was hereditary.”)
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’s 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 “is one of the few people who convince me that there is such a thing as a good Republican.”
But Harlan’s many battles with Black show how unwieldly labels – particularly when they have political overtones – can be at the Supreme Court. And nowhere is this clearer than in Griswold v. Connecticut. Harlan, the “conservative,” argued that the due process clause of the Fourteenth Amendment embodies a tradition of liberty – and that courts have both the power and the responsibility to enforce that tradition. In doing so, he joined the majority in invalidating Connecticut’s restrictions on contraception. Black, the “progressive” of the two, responded that Harlan’s approach was judicial usurpation and that judges should only enforce constitutional protections that appear explicitly in the text. Whereas the “conservative” voted to strike the ban on contraception, the “progressive” would have upheld it.
I. Two very different men
Hugo Black’s 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.
Black had been a member of the Ku Klux Klan in the 1920s – 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.
This required strict constitutional interpretation (a precursor to what would come to be known as “textualism”). When the Constitution said that “Congress shall make no law abridging speech,” for example, Black believed it really meant no law – 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 “Fuck the draft” because the man was not engaged in speech, but rather in expressive action, which was not explicitly covered by the First Amendment’s text (Harlan wrote the majority opinion overturning the man’s conviction; Black joined the dissent). Black argued that the Fourteenth Amendment’s due process clause incorporated the entire Bill of Rights against the states and did not believe in “selective” incorporation. He believed that this strict interpretation limited judicial discretion – an approach that typically led him to what are regarded as progressive outcomes, but which is now commonly associated with judicial conservativism.
If Black was an improbable justice, John Marshall Harlan II was predictable. He was the grandson of the famous “Great Dissenter” who alone opposed the Plessy v. Ferguson 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.
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’s protection of “liberty” was not a blank check, but it also wasn’t limited to the specific rights enumerated in the first ten amendments. Harlan’s 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.
Harlan and Black were frequently at odds. Whereas Black joined the majority in New York Times Co. v. United States, 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, where the court applied the Fourth Amendment’s exclusionary rule (barring the use of illegally obtained evidence) to the states, and Pointer v. Texas, where the court incorporated the Sixth Amendment’s confrontation clause. Harlan dissented in both. And whereas Black joined the majority in Miranda v. Arizona, which deemed a “Miranda warning” constitutionally required before a defendant’s self-incriminating statements can be admitted, Harlan wrote in dissent that “nothing 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.” Harlan valued flexibility. Black valued predictability.
II. Peak disagreement
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.
Perhaps because it applied to couples behind closed doors, in practice, this law was almost never enforced – which made it rather difficult for people to challenge. In 1961, in Poe v. Ullman – an earlier challenge to Connecticut’s contraceptives law – the justices declined to reach the constitutional question because there was no record of enforcement and therefore, in the justices’ view, no genuine case or controversy.
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’s 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’s medical director. In November 1961, they opened a birth control clinic in New Haven – 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 ten days, Griswold and Buxton were arrested.
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.
Black was blunt about what he saw as the challengers’ true ask: “It 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 … 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.” When Black continued to probe which provision of the Constitution the attorney was relying on, he responded by pointing to several: “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.” Emerson later invoked the Ninth Amendment as well, and the First Amendment – which prompted Black to observe that this case didn’t involve simple speech; it involved a physical examination and a prescription.
But the government enjoyed equally tough questions. When Connecticut’s attorney went as far as to argue that the state “could prevent marriage in certain people, certain groups … between idiots, say, or age in marriage,” 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, “I can only say that married couples do not have freedom to do what they want.”
III. The decision
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’s right against searches and seizures, the Fifth Amendment’s right against self-incrimination and its implicit privacy concerns, the Ninth Amendment’s general affirmation of unenumerated rights, and even the Third Amendment’s right not to quarter troops. In his view, the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
At bottom, Douglas appeared to rely on the idea that it was simply inconceivable that the Constitution didn’t protect this type of intimate relationship. “Would we allow the police,” he asked, “to 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.”
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:
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’s] reasoning, such an invasion of marital privacy would not be subject to constitutional challenge, because, while it might be ‘silly,’ no provision of the Constitution specifically prevents the Government from curtailing the marital right to bear children and raise a family.
He concluded that, “While 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.”
Harlan agreed that Connecticut’s law was unconstitutional, but wrote separately to explain that he did not rest his decision on Douglas’ penumbra theory, nor on Goldberg’s Ninth Amendment analysis. The right to marital privacy, he argued, followed directly from the due process clause standing alone, which protects any values “implicit in the concept of ordered liberty.” In Harlan’s view, the majority’s theory and Black’s 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.
Harlan was also skeptical that Black’s 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 “personal” interpretation as the open-ended liberty language Black distrusted. In particular, he argued that Reynolds v. Sims, which established the principle of “one person, one vote” and which was joined by Black, “was made in the face of irrefutable and still unanswered history to the contrary.” Harlan concluded that, as in any other area of constitutional law, “judicial restraint” is possible “only 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.”
Hugo Black, for his part, began his dissent with a concession: Connecticut’s law, he said, was “every bit as offensive to me as it is to my Brethren of the majority” – but he thought the court had no constitutional anchor that could justify overturning it. The majority’s invocation of “privacy,” he argued, was entirely unmoored:
The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ 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.
He saw both the majority and the concurrences as “merely 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.” In his view, they were replacing the Constitution with their own views about what rights needed protecting, turning themselves into “members [of] a day-to-day constitutional convention.” If the Constitution needed to be updated, there was an amendment process for that. “That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me.” He concluded, “I 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."
IV. Afterword
History has, in complicated ways, vindicated both men. When the court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization in 2022, for example, the majority sounded, partly, in Black’s critique. Justice Samuel Alito’s majority opinion argued that the due process clause does not protect unenumerated rights unless they are deeply rooted in the nation’s history and tradition – a formulation that tracks Harlan’s method but gives it a more restrictive content, and that echoes Black’s worry about unconstrained judicial discretion.
So who was the conservative, and who was the progressive? Black – the former Klansman turned New Dealer, the strict textualist who voted with the civil libertarians – defies any clean category. So does Harlan – 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 may be less about privacy than about the nature of constitutional law – or at least constitutional law at its best – where there are no “sides” or partisan goals, but instead different judicial philosophies that can lead to more or less “progressive” or “conservative” results depending on the case.
