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Crazy Supreme Court Justices: William O. Douglas

 
Justice William O. Douglas

I think President Trump has made a fine appointment to the Supreme Court, and I wish Mr. Kavanaugh the best of luck in confirmation and career. However, I started to think about how mercurial some of those black-robed people who sit on SCOTUS have proven to be once they have received their lifetime appointments, and the country is stuck with them.

For example, “Wild Bill” Douglas, who, as well as being a chairman of the SEC, was considered one of the top law professors at Yale. He was nominated by FDR to replace Louis Brandeis, and he is famous for believing in individual rights, though he supported these with shady reasoning that relied on the magical “penumbras” from which he could derive “privacy” as a Constitutional guarantee.

He is also remembered for submitting judicial opinions written in as little as twenty minutes, lying repeatedly about his personal history to the point of making up a bout with polio as a youngster, having a tumultuous love life that was rife with spousal abuse and led to his record for most divorces obtained by a sitting justice, and losing a wee bit of his mind in the end.

Personally, I think the fact that one horse threw him from its back, breaking fourteen of Douglas’s ribs in Yakima, Washington, in 1949 and then another horse kicked him so hard he had to go to the hospital again in 1950 might say something about him.

Perhaps these episodes show he could be personally reckless, or maybe they illustrate even animals didn’t like him.

To be fair, the trees were probably pleased by the man, as he wrote a dissent saying inanimate objects like them should have legal standing to sue in American courts, but none of them can speak, so I cannot get their opinions.

There were two attempts to remove Douglas from SCOTUS, which went nowhere despite his flagrant politicking, slipshod judicial reasoning, and a moral compass so broken his children did not even bother to tell him when their mother died.

He is, actually, the longest serving justice in US history. He was on the Supreme Court from 1939 to 1975.

May we not have another of his caliber, though you can visit the judge where he rests beside greater men with lesser rank in Arlington National Cemetery anytime you’d like.

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There are 38 comments.

  1. 1
  2. 2
  1. Member

    The taxpayer always won in his book, but that’s small consolation.

    • #1
    • July 10, 2018 at 6:17 am
    • 1 like
  2. Coolidge
    Lois Lane Post author

    Knowing some of his history of personal philandering, I kinda wonder if he could have survived the #metoo movement today… especially since his opinion in Griswold poured the foundation for Roe. I think it’s an interesting question.

    • #2
    • July 10, 2018 at 6:25 am
    • 5 likes
  3. Member

    Lois Lane: …though he supported these with shady reasoning that relied on the magical “penumbrus” from which he could derive “privacy” as a Constitutional guarantee.

    < devil’s advocate mode = on >

    The 9th Amendment protects rights not enumerated in the Constitution. If it’s the job of the Supreme Court to protect individual rights, then the 9th Amendment gives them the ability to protect rights that have not been enumerated.

    One could argue that the only way to settle this problem is with a new amendment which clarifies which branch (or branches) of government is authorized to enumerate rights.

    The usual conservative answer is that all three branches are equally responsible for interpreting the constitution, which would mean (IMHO) that the Supreme Court has just as much authority to enumerate individual rights as the other two branches.

    < devil’s advocate mode = off >

    • #3
    • July 10, 2018 at 6:53 am
    • 6 likes
  4. Coolidge
    Lois Lane Post author

    Misthiocracy, Joke Pending (View Comment):

    Lois Lane: …though he supported these with shady reasoning that relied on the magical “penumbrus” from which he could derive “privacy” as a Constitutional guarantee.

    < devil’s advocate mode = on >

    The 9th Amendment protects rights not enumerated in the Constitution. If it’s the job of the Supreme Court to protect individual rights, then the 9th Amendment gives them the ability to protect rights that have not been enumerated.

    The only way to settle this problem is with a new amendment which clarifies which branch (or branches) of government is authorized to enumerate rights.

    The usual conservative answer is that all three branches are equally responsible for interpreting the constitution, which would mean (IMHO) that the Supreme Court has just as much authority to enumerate individual rights as the other two branches.

    < devil’s advocate mode = off >

    Clarence Thomas, a strong conservative, has been reported to have hung in the Supreme Court chambers a sign that says “please don’t emanate in the penumbras.”

    I think you have articulated Douglas’s impulse to protect individual rights better than Douglas?

    • #4
    • July 10, 2018 at 7:20 am
    • 10 likes
  5. Member

    Misthiocracy, Joke Pending (View Comment):

    Lois Lane: …though he supported these with shady reasoning that relied on the magical “penumbrus” from which he could derive “privacy” as a Constitutional guarantee.

    < devil’s advocate mode = on >

    The 9th Amendment protects rights not enumerated in the Constitution. If it’s the job of the Supreme Court to protect individual rights, then the 9th Amendment gives them the ability to protect rights that have not been enumerated.

    The only way to settle this problem is with a new amendment which clarifies which branch (or branches) of government is authorized to enumerate rights.

    The usual conservative answer is that all three branches are equally responsible for interpreting the constitution, which would mean (IMHO) that the Supreme Court has just as much authority to enumerate individual rights as the other two branches.

    < devil’s advocate mode = off >

    The only proper answer to this, I would think, is to ask why, instead of talking about “Penumbras” the Justice didn’t just cite the 9th. Amendment (which seems to have been sloppily drawn after a night of boozing and carousing).

    • #5
    • July 10, 2018 at 7:28 am
    • 1 like
  6. Member

    Thanks for a – as usual – thoughtful post, Lois.

    I wonder how many people know that it was Gerald Ford who tried to have Douglas impeached? For those who are always yelling about “The Establishment”, it would be nice to keep this is mind, with Ford being the epitome if this badly used term.

    • #6
    • July 10, 2018 at 7:34 am
    • 1 like
  7. Member

    George Townsend (View Comment):

    Misthiocracy, Joke Pending (View Comment):

    Lois Lane: …though he supported these with shady reasoning that relied on the magical “penumbrus” from which he could derive “privacy” as a Constitutional guarantee.

    < devil’s advocate mode = on >

    The 9th Amendment protects rights not enumerated in the Constitution. If it’s the job of the Supreme Court to protect individual rights, then the 9th Amendment gives them the ability to protect rights that have not been enumerated.

    The only way to settle this problem is with a new amendment which clarifies which branch (or branches) of government is authorized to enumerate rights.

    The usual conservative answer is that all three branches are equally responsible for interpreting the constitution, which would mean (IMHO) that the Supreme Court has just as much authority to enumerate individual rights as the other two branches.

    < devil’s advocate mode = off >

    The only proper answer to this, I would think, is to ask why, instead of talking about “Penumbras” the Justice didn’t just cite the 9th. Amendment (which seems to have been sloppily drawn after a night of boozing and carousing).

    a) I wager that, for the sake of optics, if they can find a way to twist a more popular amendment to suit their needs, they prefer to do so.

    b) Technically, the 9th Amendment only says that one cannot use an enumerated right to violate an unenumerated right. (i.e. You can’t cite free exercise of religion to justify murder.) It does not say that one cannot use an enumerated power to violate an unenumerated right. In order for the court to rule that the government cannot use an enumerated power to violate a right (i.e. a right to privacy), it’s arguable that the court has to prove that the right in question is enumerated.

    (Unfortunately, one could use that argument to justify laws banning hate speech. If the 9th Amendment protects an individual’s “right to emotional security”, then one would not be allowed to cite the 1st Amendment as justification for violating that right.)

    c) I find that, actually, very few Supreme Court opinions are about discovering new individual rights. Most of them are about discovering new powers for the federal government, and the 9th Amendment doesn’t help in that regard.

    • #7
    • July 10, 2018 at 8:04 am
    • 2 likes
  8. Coolidge
    Lois Lane Post author

    Moderator Note:

    The CoC frowns on "Obscenities and vulgarities, even using various symbols for letters, or shorthand (e.g., text messaging abbreviations). Ricochet style is to use '[expletive].'"

    Misthiocracy, Joke Pending (View Comment):
    c) I find that, actually, very few Supreme Court opinions are about discovering new individual rights. Most of them are about discovering new powers for the federal government, and the 9th Amendment doesn’t help in that regard.

    Oh, this brings to mind a Supreme Court Justice who was actually a much better man than our guy Bill.

    John Marshall molded the court and elevated its power. He tended to pen rulings that made the federal government much stronger, i.e. all those famous cases like McCullough v. Maryland that you have to learn about even if you don’t study law. This is in part because some of that was necessary to support a nation… to lay the foundations for even the economy we have today.

    Yet he didn’t seem to just be making [stuff] up.

    I mean… come on. 

    Don’t you think Bill just made some [stuff] up? 

    :) 

    • #8
    • July 10, 2018 at 8:11 am
    • Like
  9. Member

    Misthiocracy, Joke Pending (View Comment):

    George Townsend (View Comment):

    Misthiocracy, Joke Pending (View Comment):

    Lois Lane: …though he supported these with shady reasoning that relied on the magical “penumbrus” from which he could derive “privacy” as a Constitutional guarantee.

    < devil’s advocate mode = on >

    The 9th Amendment protects rights not enumerated in the Constitution. If it’s the job of the Supreme Court to protect individual rights, then the 9th Amendment gives them the ability to protect rights that have not been enumerated.

    The only way to settle this problem is with a new amendment which clarifies which branch (or branches) of government is authorized to enumerate rights.

    The usual conservative answer is that all three branches are equally responsible for interpreting the constitution, which would mean (IMHO) that the Supreme Court has just as much authority to enumerate individual rights as the other two branches.

    < devil’s advocate mode = off >

    The only proper answer to this, I would think, is to ask why, instead of talking about “Penumbras” the Justice didn’t just cite the 9th. Amendment (which seems to have been sloppily drawn after a night of boozing and carousing).

    a) I wager that, for the sake of optics, if they can find a way to twist a more popular amendment to suit their needs, they prefer to do so.

    b) Technically, the 9th Amendment only says that one cannot use an enumerated right to violate an unenumerated right. (i.e. You can’t cite free exercise of religion to justify murder.) It does not say that one cannot use an enumerated power to violate an unenumerated right. In order for the court to rule that the government cannot use an enumerated power to violate a right (i.e. a right to privacy), it’s arguable that the court has to prove that the right in question is enumerated.

    (Unfortunately, one could use that argument to justify laws banning hate speech. If the 9th Amendment protects an individual’s “right to emotional security”, then one would not be allowed to cite the 1st Amendment as justification for violating that right.)

    c) I find that, actually, very few Supreme Court opinions are about discovering new individual rights. Most of them are about discovering new powers for the federal government, and the 9th Amendment doesn’t help in that regard.

    I commend you trying to explain this, but my point was that the ninth Amendment, being written so expansively, can be used to justify anything. It could have been used to justify Griswold, if they had thought of it. The Left even uses the preamble to justify an omnipotent state (to promote the general welfare).

    • #9
    • July 10, 2018 at 9:27 am
    • 1 like
  10. Coolidge
    Lois Lane Post author

    My apologies to the moderator. I did, indeed, imply a bad word, but making “stuff” up works just fine for Wild Bill’s opinions, especially since my complaint is that he wasn’t careful or precise with his language! :)

    • #10
    • July 10, 2018 at 9:28 am
    • 2 likes
  11. Member

    It takes five to tango. Douglas’ four co-conspirators in Griswold v. Conn. deserve a mention–Earl Warren, Tom Clark, William Brennan, and Arthur Goldberg. Brennan and Warren were Eisenhower appointments.

    Given the tenor of our own times, it’s interesting that Douglas, though on the court for almost 37 years, retired at “only” 77, before passing at 81. Today, one wonders if there would have been pressure on him to remain for a bit longer.

    • #11
    • July 10, 2018 at 10:30 am
    • 1 like
  12. Member

    Misthiocracy, Joke Pending (View Comment):
    b) Technically, the 9th Amendment only says that one cannot use an enumerated right to violate an unenumerated right. (i.e. You can’t cite free exercise of religion to justify murder.) It does not say that one cannot use an enumerated power to violate an unenumerated right. In order for the court to rule that the government cannot use an enumerated power to violate a right (i.e. a right to privacy), it’s arguable that the court has to prove that the right in question is enumerated.

    Is that what it means? I always understood it to mean that the fact that the Constitution specifically mentions certain rights shall not be interpreted to mean that those are the only rights there are.

    So the argument is made that if something wasn’t illegal at the founding, then there was a right to do it. Such as abortion maybe. The counter argument is that merely not being illegal doesn’t make it a right. A right is something that was specifically understood as such at the time, which is still a grey area. 

     

     

    • #12
    • July 10, 2018 at 11:09 am
    • 2 likes
  13. Member

    George Townsend (View Comment):

    Misthiocracy, Joke Pending (View Comment):

    b) Technically, the 9th Amendment only says that one cannot use an enumerated right to violate an unenumerated right. (i.e. You can’t cite free exercise of religion to justify murder.) It does not say that one cannot use an enumerated power to violate an unenumerated right. In order for the court to rule that the government cannot use an enumerated power to violate a right (i.e. a right to privacy), it’s arguable that the court has to prove that the right in question is enumerated.

    I commend you trying to explain this, but my point was that the ninth Amendment, being written so expansively, can be used to justify anything. It could have been used to justify Griswold, if they had thought of it. The Left even uses the preamble to justify an omnipotent state (to promote the general welfare).

    I’m not convinced.

    Griswold v. Connecticut was about the State of Connecticut using it’s 10th Amendment power to infringe on an unenumerated right, and not about a conflict between an enumerated right and an unenumerated right.

    Since the 9th Amendment doesn’t mention any restriction on enumerated powers, it’s debatable that the 9th Amendment would apply, which is probably why the Supreme Court decided to go with their (highly strained) Fifth Amendment argument instead.

    Of course, at the end of the day, if the Supreme Court decides that the 9th Amendment applies to powers as well as rights then who’s to stop ’em?

    • #13
    • July 10, 2018 at 11:41 am
    • 2 likes
  14. Member

    Bob Wainwright (View Comment):

    Misthiocracy, Joke Pending (View Comment):
    b) Technically, the 9th Amendment only says that one cannot use an enumerated right to violate an unenumerated right. (i.e. You can’t cite free exercise of religion to justify murder.) It does not say that one cannot use an enumerated power to violate an unenumerated right. In order for the court to rule that the government cannot use an enumerated power to violate a right (i.e. a right to privacy), it’s arguable that the court has to prove that the right in question is enumerated.

    Is that what it means? I always understood it to mean that the fact that the Constitution specifically mentions certain rights shall not be interpreted to mean that those are the only rights there are.

    So the argument is made that if something wasn’t illegal at the founding, then there was a right to do it. Such as abortion maybe. The counter argument is that merely not being illegal doesn’t make it a right. A right is something that was specifically understood as such at the time, which is still a grey area.

    According to Wikipedia, the Supreme Court ruled on this question in United Public Workers v. Mitchell (1947).

    As mentioned earlier, it hinges on the legal difference between a right and a power. Could one not argue that if one is granted a power to do something if follows that one has a right to do that thing? If one has a right to do something does it not follow that one is empowered to do that thing? If so, then it shouldn’t matter that the 9th Amendment only mentions rights and fails to mention powers. It’s pretty dang easy to get lost in the semantic weeds with this question, but that’s apparently not how the Supreme Court ruled in 1947.

    • #14
    • July 10, 2018 at 11:48 am
    • 2 likes
  15. Member

    Misthiocracy, Joke Pending (View Comment):

    George Townsend (View Comment):

    Misthiocracy, Joke Pending (View Comment):

    b) Technically, the 9th Amendment only says that one cannot use an enumerated right to violate an unenumerated right. (i.e. You can’t cite free exercise of religion to justify murder.) It does not say that one cannot use an enumerated power to violate an unenumerated right. In order for the court to rule that the government cannot use an enumerated power to violate a right (i.e. a right to privacy), it’s arguable that the court has to prove that the right in question is enumerated.

    I commend you trying to explain this, but my point was that the ninth Amendment, being written so expansively, can be used to justify anything. It could have been used to justify Griswold, if they had thought of it. The Left even uses the preamble to justify an omnipotent state (to promote the general welfare).

    I’m not convinced.

    Griswold v. Connecticut was about the State of Connecticut using it’s 10th Amendment power to infringe on an unenumerated right, and not about a conflict between an enumerated right and an unenumerated right.

    Since the 9th Amendment doesn’t mention any restriction on enumerated powers, it’s debatable that the 9th Amendment would apply, which is probably why the Supreme Court decided to go with their (highly strained) Fifth Amendment argument instead.

    Of course, at the end of the day, if the Supreme Court decides that the 9th Amendment applies to powers as well as rights then who’s to stop ’em?

    I like talking about the Constitution, but, frankly, this differentiating between powers and rights is beginning to bore me. What law school did you go to? And, before you ask, I have no background in the law.

    Also: You never mentioned that the Supreme Court was never supposed to have power over the states. My understanding is that they relegated that power to themselves, by using the 14th amendment as an excuse to incorporate the Amendments, and say that they also apply to the states.

    • #15
    • July 10, 2018 at 12:14 pm
    • Like
  16. Member

    George Townsend (View Comment):

    Misthiocracy, Joke Pending (View Comment):

    George Townsend (View Comment):

    Misthiocracy, Joke Pending (View Comment):

    b) Technically, the 9th Amendment only says that one cannot use an enumerated right to violate an unenumerated right. (i.e. You can’t cite free exercise of religion to justify murder.) It does not say that one cannot use an enumerated power to violate an unenumerated right. In order for the court to rule that the government cannot use an enumerated power to violate a right (i.e. a right to privacy), it’s arguable that the court has to prove that the right in question is enumerated.

    I commend you trying to explain this, but my point was that the ninth Amendment, being written so expansively, can be used to justify anything. It could have been used to justify Griswold, if they had thought of it. The Left even uses the preamble to justify an omnipotent state (to promote the general welfare).

    I’m not convinced.

    Griswold v. Connecticut was about the State of Connecticut using it’s 10th Amendment power to infringe on an unenumerated right, and not about a conflict between an enumerated right and an unenumerated right.

    Since the 9th Amendment doesn’t mention any restriction on enumerated powers, it’s debatable that the 9th Amendment would apply, which is probably why the Supreme Court decided to go with their (highly strained) Fifth Amendment argument instead.

    Of course, at the end of the day, if the Supreme Court decides that the 9th Amendment applies to powers as well as rights then who’s to stop ’em?

    I like talking about the Constitution, but, frankly, this differentiating between powers and rights is beginning to bore me. What law school did you go to? And, before you ask, I have no background in the law.

    Also: You never mentioned that the Supreme Court was never supposed to have power over the states. My understanding is that they relegated that power to themselves, by using the 14th amendment as an excuse to incorporate the Amendments, and say that they also apply to the states.

    a) The Wikipedia School of Law.

    b) My understanding is that Section 1 of the 14th Amendment is pretty explicit about bringing the states under the jurisdiction of the Constitution, including the Bill of Rights and the further amendments.

    c) The fact that the 9th Amendment (1789) uses the word “rights” exclusively, while the 10th Amendment (1791) uses the word “powers” exclusively, at the very least suggests that the framers did not intend that the two words be considered interchangeable. The amendments were drafted and ratified a mere two years apart from each other.

    • #16
    • July 10, 2018 at 12:19 pm
    • 2 likes
  17. Member

    Misthiocracy, Joke Pending (View Comment):

    a) I wager that, for the sake of optics, if they can find a way to twist a more popular amendment to suit their needs, they prefer to do so.

    b) Technically, the 9th Amendment only says that one cannot use an enumerated right to violate an unenumerated right. (i.e. You can’t cite free exercise of religion to justify murder.) It does not say that one cannot use an enumerated power to violate an unenumerated right. In order for the court to rule that the government cannot use an enumerated power to violate a right (i.e. a right to privacy), it’s arguable that the court has to prove that the right in question is enumerated.

    (Unfortunately, one could use that argument to justify laws banning hate speech. If the 9th Amendment protects an individual’s “right to emotional security”, then one would not be allowed to cite the 1st Amendment as justification for violating that right.)

    c) I find that, actually, very few Supreme Court opinions are about discovering new individual rights. Most of them are about discovering new powers for the federal government, and the 9th Amendment doesn’t help in that regard.

    We’re agreed, I think , that Griswold was a major case in the “discovering” of an individual right–that is, to privacy. It’s a product of the substantive due process school of constitutional interpretation, and the major “weapon” of those who preach the “living Constitution.” The dissents of Hugo Black and Potter Stewart in Griswold are very informative for anyone who’s interested.

    • #17
    • July 10, 2018 at 12:46 pm
    • 1 like
  18. Moderator

    Hoyacon (View Comment):

    Misthiocracy, Joke Pending (View Comment):

    We’re agree, I think, that Griswold was a major case in the “discovering” of an individual right–that is, to privacy. It’s a product of the substantive due process school of constitutional interpretation, and the major “weapon” of those who preach the “living Constitution.” The dissents of Hugo Black and Potter Stewart in Griswold are very informative for anyone who’s interested.

    Might as well ask a real lawyer this, @hoyacon, since I’m not one myself:

    Did those who discovered the right to privacy discover it as an outgrowth of the notion of “quiet enjoyment”, or is that just a figment of my rather fanciful memory?

    • #18
    • July 10, 2018 at 12:52 pm
    • 1 like
  19. Coolidge
    Lois Lane Post author

    So I guess I’d say Douglas is so bothersome because he did not seem to have any bounding principles. He liked individual liberty, but he seemed to rule based on his own passions? However it suited him?

    It seems worrisome that any such man could get as much power as he got, albeit requiring some other judges to activate it like so many Wonder Twins uniting.

    I mean…. if you dislike a President, vote for a different one. Run out the clock.

    Douglas? He wielded his power almost to his death. And I’m sure he’s not the worst Justice in history.

    • #19
    • July 10, 2018 at 12:53 pm
    • 1 like
  20. Coolidge
    Lois Lane Post author

    You’re a lawyer, @hoyacon? Who would you say has been the worst Supreme Court Justice… ever?

    • #20
    • July 10, 2018 at 12:56 pm
    • Like
  21. Member

    Lois Lane (View Comment):

    You’re a lawyer, @hoyacon? Who would you say has been the worst Supreme Court Justice… ever?

    Unfortunately, I’m not nearly enough of a scholar to have an informed opinion, but my guess is it may depend on one’s criteria and issue preferences. FWIW, Roger Taney–author of Dred Scott v. Sandford, is certainly near the top of most lists. Hugo Black, author of Korematsu v. U.S. and a former Klansman, is viewed with suspicion by Catholics and many other people of faith. Since actually having to resign from the Court due to ethics issues is not a good sign, Abe Fortas may deserve a mention. But there are a lot of Justices from the 19th century that I don’t know anything about, so I’m likely omitting someone.

    • #21
    • July 10, 2018 at 1:08 pm
    • 2 likes
  22. Member

    Midget Faded Rattlesnake (View Comment):

    Hoyacon (View Comment):

    Misthiocracy, Joke Pending (View Comment):

    We’re agree, I think, that Griswold was a major case in the “discovering” of an individual right–that is, to privacy. It’s a product of the substantive due process school of constitutional interpretation, and the major “weapon” of those who preach the “living Constitution.” The dissents of Hugo Black and Potter Stewart in Griswold are very informative for anyone who’s interested.

    Might as well ask a real lawyer this, @hoyacon, since I’m not one myself:

    Did those who discovered the right to privacy discover it as an outgrowth of the notion of “quiet enjoyment”, or is that just a figment of my rather fanciful memory?

    Not that I’m aware of. The “penumbras” (i.e.’ “zones of privacy”) were found to be lurking in the First Amendment’s freedom of association, the Fourth Amendment (search and seizure), Fifth Amendment (self-incrimination) and (my favorite) the Third Amendment’s prohibition on quartering of soldiers in a domicile during peace time.

    • #22
    • July 10, 2018 at 1:13 pm
    • 3 likes
  23. Member

    Now that I’m kind of wound up on Griswold, an interesting factoid is that Griswold was Executive Director of the Planned Parenthood League of Connecticut, and had been busted as an accessory to a crime. Query whether that theory would ever be pursued today. SCOTUS started by determining that there was standing on his part to challenge the law.

    • #23
    • July 10, 2018 at 1:20 pm
    • 2 likes
  24. Reagan

    Lois Lane (View Comment):

    You’re a lawyer, @hoyacon? Who would you say has been the worst Supreme Court Justice… ever?

    While I am not hoyacon, I am a lawyer. I am not sure about the worst Justice, but I would nominate Roger Taney as the worst Chief Justice for the Dred Scott decision, only the second Supreme Court decision to find a statute to be unconstitutional. Execrable.

    Dred Scott guaranteed the Civil War.

    • #24
    • July 10, 2018 at 1:58 pm
    • 2 likes
  25. Member

    Hoyacon (View Comment):

    Midget Faded Rattlesnake (View Comment):

    Hoyacon (View Comment):

    Misthiocracy, Joke Pending (View Comment):

    We’re agree, I think, that Griswold was a major case in the “discovering” of an individual right–that is, to privacy. It’s a product of the substantive due process school of constitutional interpretation, and the major “weapon” of those who preach the “living Constitution.” The dissents of Hugo Black and Potter Stewart in Griswold are very informative for anyone who’s interested.

    Might as well ask a real lawyer this, @hoyacon, since I’m not one myself:

    Did those who discovered the right to privacy discover it as an outgrowth of the notion of “quiet enjoyment”, or is that just a figment of my rather fanciful memory?

    Not that I’m aware of. The “penumbras” (i.e.’ “zones of privacy”) were found to be lurking in the First Amendment’s freedom of association, the Fourth Amendment (search and seizure), Fifth Amendment (self-incrimination) and (my favorite) the Third Amendment’s prohibition on quartering of soldiers in a domicile during peace time.

    Point of Order: The First Amendment guarantees freedom of assembly, not freedom of association. It’s a subtle distinction, but a non-trivial one.

    The Supreme Court didn’t rule that there was a right to freedom of association until 1958, and ultimately that ruling derived from the 4th and 5th amendments (you have a right to keep your association’s membership list private), rather than the 1st Amendment.

    The Court didn’t rule that the 1st Amendment guarantees a right to freedom of association until 1984, and even then it only did so indirectly (by saying that while this right exists, it was not violated by a law requiring that the Jaycees accept female members).

    Any way I look at it, the constitutional right to freedom of association is as much the result of “penumbras” as the right to privacy.

    • #25
    • July 10, 2018 at 2:02 pm
    • 1 like
  26. Reagan

    A couple of stories about William O. Douglas. First, as previously stated House Minority Leader Gerald Ford filed Articles of Impeachment against Douglas two or three times. However, Douglas had a stroke and was forced to retire when his fellow justices refused to take cases where he would have the deciding vote. He retired and his seat was filed by President Gerald Ford who was quite gracious.

    Second, Douglas had an incredible mind and memory. A law clerk for another justice once admitted that he was stumped in writing a dissent to an upcoming Douglas opinion. Douglas dictated a cogent and convincing dissent, complete with the accurate citations to the U.S. Reports, in one sitting without any research. What a mind!

    I got a kick out of Douglas and enjoyed his biography (“Go East Young Man”) while I was in law school during 1973-76. Now, looking back, I am glad that there was only one Justice Douglas.

    • #26
    • July 10, 2018 at 2:09 pm
    • 5 likes
  27. Member

    Gary Robbins (View Comment):

    Lois Lane (View Comment):

    You’re a lawyer, @hoyacon? Who would you say has been the worst Supreme Court Justice… ever?

    While I am not hoyacon, I am a lawyer. I am not sure about the worst Justice, but I would nominate Roger Taney as the worst Chief Justice for the Dred Scott decision, only the second Supreme Court decision to find a statute to be unconstitutional. Execrable.

    Dred Scott guaranteed the Civil War.

    Also worth noting that it was not an originalist reading, but closer to what passes for interpretative jurisprudence today. One of the two dissenters, Benjamin Robbins Curtis of Watertown MA, eventually resigned from the Court over the divisions caused by Dred Scott. There’s an older QOTD here that I posted based on a portion of his dissent. He’s a forgotten historical figure who should not be forgotten, the only Whig to ever serve on the Court, and the only Justice said to have resigned over principle..

    • #27
    • July 10, 2018 at 2:13 pm
    • 3 likes
  28. Reagan

    Hoyacon (View Comment):

    Gary Robbins (View Comment):

    Lois Lane (View Comment):

    You’re a lawyer, @hoyacon? Who would you say has been the worst Supreme Court Justice… ever?

    While I am not hoyacon, I am a lawyer. I am not sure about the worst Justice, but I would nominate Roger Taney as the worst Chief Justice for the Dred Scott decision, only the second Supreme Court decision to find a statute to be unconstitutional. Execrable.

    Dred Scott guaranteed the Civil War.

    Also worth noting that it was not an originalist reading, but closer to what passes for interpretative jurisprudence today. One of the two dissenters, Benjamin Robbins Curtis of Watertown MA, eventually resigned from the Court over the divisions caused by Dred Scott. There’s an older QOTD here that I posted based on a portion of his dissent. He’s a forgotten historical figure who should not be forgotten, and the only Whig to ever serve on the Court.

    Even worse, I understand that Taney leaked the decision to President James Buchanan, who said that he would defer on the issue of slavery being extended to the territories to the upcoming Dred Scott decision. Execrable of both Taney and Buchanan.

    • #28
    • July 10, 2018 at 2:17 pm
    • 3 likes
  29. Reagan

    I still quote Douglas when dealing with a heavy-handed and leviathan Child Protective Services. Douglas wrote in a tax case, that sometimes the government must be forced to turn by square corners. (In other words, the government cannot cut corners when seeking to deprive people of their rights.) Perfect.

    • #29
    • July 10, 2018 at 2:22 pm
    • 1 like
  30. Moderator

    Misthiocracy, Joke Pending (View Comment):

    The Court didn’t rule that the 1st Amendment guarantees a right to freedom of association until 1984, and even then it only did so indirectly (by saying that while this right exists, it was not violated by a law requiring that the Jaycees accept female members).

    Any way I look at it, the constitutional right to freedom of association is as much the result of “penumbras” as the right to privacy.

    On the other hand, the Founders seem to have thought natural rights are A Thing, even unenumerated rights. They inherited common-law customs from England, where rights don’t have to be explicitly summarized — it is enough that they’re customarily observed. 

    I am not sure why freedom of association, which is an Anglo-American custom, must be a “penumbra” emanating from the explicitly stated rights in the Bill of Rights, rather than being justified by the Ninth Amendment: freedom of association is a natural right retained by the people, which the Constitution should not be construed as denying or disparaging.

    Perhaps Hamilton was right –

    I go further, and affirm, that Bills of Rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.

    It is deeply weird, considering our Founding, that judges feel obligated to resort to torturing the few explicitly-listed rights in order to justify the Constitution’s claim to recognize other, unenumerated rights.

    • #30
    • July 10, 2018 at 2:49 pm
    • 2 likes
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