No conference/order day scheduled for last Friday/today given the holiday, but have some SCOTUS news all the same. The specific details have not been set yet, but the Supreme Court, for the first time, will have arguments by telephone in May with live audio "for the news media" but reportedly this will be provided to the general public as well. This leaves open live tweeting from the very talented legal twitter community, some with .gifs.
Justice Breyer did both a zoom with students and a census PSA, but unlike your average law professor, they aren't going with video. Anyway, this will put pressure to make something like this permanently in place. Just to recall, the justices released some opinions remotely. When that happens, Oyez.com eventually tends to have opinion announcements. In this case, they would not be available though I say the justices should have taped them anyhow. Hey, maybe one or more justices did so!
I should, and do add, this. Some were pissed at this move in light of what happened in the 5-4 Wisconsin Primary case [Biden won 2-1, the liberal judge won (55/45) and the victim rights measure won big]. The majority's answer would be that the Supreme Court has authority to do this while there they were restrained by state law. True on some level. But, doing this, including the flexibility given the Court's general conservative nature on change and same day audio etc., is still telling. The opinion spoke of "ordinary" rules. We live in extraordinary times. So, people do have a reason to be upset. All of this is connected on some level.
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I re-read John Johnson's (really) as a whole very good book on Griswold v. Connecticut though caught various factual errors here and there. (For instance, it didn't clearly explain how broadly the New York restatement of contraceptives rules were struck down in the Carey case.) It provides a good general history, many background facts, legal summaries and discussion of the aftermath up until around 2004. A good general example of the cottage history of books about a certain case that provides an opportunity to provide a thumbnail history of wider issues.
Griswold itself provides a lot of fodder though even with all those opinions, there is something lacking there. The main opinion is rather brief though not quite as brief as some make it out to be; the ending is particularly quick after the general idea of the a penumbral right of privacy is discussed. As noted by the dissent, the opinion also doesn't fully address past contraceptives cases handled by the Court. This doesn't mean the end result would change (there is a way to distinguish). The majority also could have fleshed out the privacy argument more such how the Fifth Amendment factors in. Or, emphasis as to how this is just not a place matter (focus on marital bedrooms) but a decision focused one, something later opinions made more clear. Cf. Douglas' own past opinions.
Justice Douglas in Poe v. Ullman has a whole section on doctor/patient speech and a free speech argument was posed. The majority opinion with some detail (given the brevity of the opinion as a whole) explains how the First Amendment has a broad reach further than its literal terms. Justice Black in dissent is basically the only one to address the issue (distribution isn't speech; so this is basically speech mixed with action that is not protected) though even there the overbreadth claim is not really addressed. The aiding and abetting law can be addressed by focusing on use but it is curious, especially since the matter was brought up and the general strong protection of free speech issues, the 1A was not covered here.
Justice Black's dissent is of a caliber of Justice Scalia's dissent in the Atkins v. Virginia case covered the other day. A basic complaint is opposition to long held precedents that was deemed to be particularly dubiously applied here. But, the basic precedents existed. Black and Stewart did push back to some degree about the required implications of said precedents. But, it is clear, e.g., there were various unenumerated rights protected such as travel. Applying an unenumerated right to equality to the federal government when the 14A specifically also includes an equal protection provision might be seen as an easy call, but that is somewhat also a question of line-drawing.
Justice Stewart was more open to flexibility here so his literalness in his dissent (especially given he vague statement in Poe and his comments during oral argument) is more curious than Black's standard concerns. Something came to mind there too -- Stewart said that the Ninth and Tenth Amendments provide the state discretion here. He in another case noted privacy was an important right and is a basis for state libel law. This sort of ignores the argument that unenumerated rights are incorporated by the Fourteenth Amendment too, but anyway, the dissenters said it was up to the legislature to protect privacy as they deem fit beyond the zones of privacy found in the amendments explicitly.
Now, it might be the case (the book notes the opposition by the Church was much more limited by this time though suggested the "one person, one vote" cases might help bring in more Catholic legislators supporting the law) that the state was ready to overturn the law. We already saw that Massachusetts only did so up to a point even after the opinion. Still, and Stewart got the lawyer for the state to say a state could not totally abolish it, the state already protected one such unlisted right here -- marriage. And, this was a clear concern, probably as a "privilege" or "immunity" of citizenship, of the original framers as well.
Thus, the core of this very case -- marriage is a right of citizenship, a right of the people, at the very least, the state of Connecticut so recognized. Once they did so, could they tell married couples not to have sex or whatever? Again, Justice Stewart himself flagged this issue (separation like some sci fi novel except for designated time periods or the like). This is not a right the justices had to reach out to find via vaguely worded tests. Like travel or the right to a lawful occupation, it is a rather uncontroversial right. The problem would be a matter of reach and regulation. But, there some limit there. Later cases involving unmarried individuals would be harder.
There is a lot of unexamined material in these cases.
Justice Breyer did both a zoom with students and a census PSA, but unlike your average law professor, they aren't going with video. Anyway, this will put pressure to make something like this permanently in place. Just to recall, the justices released some opinions remotely. When that happens, Oyez.com eventually tends to have opinion announcements. In this case, they would not be available though I say the justices should have taped them anyhow. Hey, maybe one or more justices did so!
I should, and do add, this. Some were pissed at this move in light of what happened in the 5-4 Wisconsin Primary case [Biden won 2-1, the liberal judge won (55/45) and the victim rights measure won big]. The majority's answer would be that the Supreme Court has authority to do this while there they were restrained by state law. True on some level. But, doing this, including the flexibility given the Court's general conservative nature on change and same day audio etc., is still telling. The opinion spoke of "ordinary" rules. We live in extraordinary times. So, people do have a reason to be upset. All of this is connected on some level.
====
I re-read John Johnson's (really) as a whole very good book on Griswold v. Connecticut though caught various factual errors here and there. (For instance, it didn't clearly explain how broadly the New York restatement of contraceptives rules were struck down in the Carey case.) It provides a good general history, many background facts, legal summaries and discussion of the aftermath up until around 2004. A good general example of the cottage history of books about a certain case that provides an opportunity to provide a thumbnail history of wider issues.
Griswold itself provides a lot of fodder though even with all those opinions, there is something lacking there. The main opinion is rather brief though not quite as brief as some make it out to be; the ending is particularly quick after the general idea of the a penumbral right of privacy is discussed. As noted by the dissent, the opinion also doesn't fully address past contraceptives cases handled by the Court. This doesn't mean the end result would change (there is a way to distinguish). The majority also could have fleshed out the privacy argument more such how the Fifth Amendment factors in. Or, emphasis as to how this is just not a place matter (focus on marital bedrooms) but a decision focused one, something later opinions made more clear. Cf. Douglas' own past opinions.
Justice Douglas in Poe v. Ullman has a whole section on doctor/patient speech and a free speech argument was posed. The majority opinion with some detail (given the brevity of the opinion as a whole) explains how the First Amendment has a broad reach further than its literal terms. Justice Black in dissent is basically the only one to address the issue (distribution isn't speech; so this is basically speech mixed with action that is not protected) though even there the overbreadth claim is not really addressed. The aiding and abetting law can be addressed by focusing on use but it is curious, especially since the matter was brought up and the general strong protection of free speech issues, the 1A was not covered here.
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.The nature and purpose of the law at issue is only vaguely cited here, again as compared to other opinions in this area. What "goals"? Two concurrences focus on the prevention of adultery, but that does not seem to be the only goal. Population control was raised as was general concerns about morality. Thus, in later cases the purpose of controlling personal decision-making here for its own sake was deemed inappropriate. The law also to some extent regulates "sale" or distribution. In fact, that is in practice the only likely way it would be enforced.
Justice Black's dissent is of a caliber of Justice Scalia's dissent in the Atkins v. Virginia case covered the other day. A basic complaint is opposition to long held precedents that was deemed to be particularly dubiously applied here. But, the basic precedents existed. Black and Stewart did push back to some degree about the required implications of said precedents. But, it is clear, e.g., there were various unenumerated rights protected such as travel. Applying an unenumerated right to equality to the federal government when the 14A specifically also includes an equal protection provision might be seen as an easy call, but that is somewhat also a question of line-drawing.
Justice Stewart was more open to flexibility here so his literalness in his dissent (especially given he vague statement in Poe and his comments during oral argument) is more curious than Black's standard concerns. Something came to mind there too -- Stewart said that the Ninth and Tenth Amendments provide the state discretion here. He in another case noted privacy was an important right and is a basis for state libel law. This sort of ignores the argument that unenumerated rights are incorporated by the Fourteenth Amendment too, but anyway, the dissenters said it was up to the legislature to protect privacy as they deem fit beyond the zones of privacy found in the amendments explicitly.
Now, it might be the case (the book notes the opposition by the Church was much more limited by this time though suggested the "one person, one vote" cases might help bring in more Catholic legislators supporting the law) that the state was ready to overturn the law. We already saw that Massachusetts only did so up to a point even after the opinion. Still, and Stewart got the lawyer for the state to say a state could not totally abolish it, the state already protected one such unlisted right here -- marriage. And, this was a clear concern, probably as a "privilege" or "immunity" of citizenship, of the original framers as well.
Thus, the core of this very case -- marriage is a right of citizenship, a right of the people, at the very least, the state of Connecticut so recognized. Once they did so, could they tell married couples not to have sex or whatever? Again, Justice Stewart himself flagged this issue (separation like some sci fi novel except for designated time periods or the like). This is not a right the justices had to reach out to find via vaguely worded tests. Like travel or the right to a lawful occupation, it is a rather uncontroversial right. The problem would be a matter of reach and regulation. But, there some limit there. Later cases involving unmarried individuals would be harder.
There is a lot of unexamined material in these cases.
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