The Paths to Griswold

INTRODUCTION Critics have long viewed Griswold v. Connecticut (1) as "in many ways a typical decision of the Warren Court." (2) But Griswold was hardly a "typical" Warren Court decision. The doctrinal themes with which the Warren Court is most closely associated--such as the protection of racial and religious minorities, refashioning the law of democracy, and solicitude for First Amendment values and for the rights of the criminally accused and the poor (3)--played either no role or only a tangential role in Griswold. With its focus on sexual privacy, procreative liberty, and unenumerated rights, Griswold shares a much greater affinity with the decisions of the later Burger Court of the 1970s--the period when Griswold first developed significant generative force as a constitutional precedent. (4) Griswold's atypical status among Warren Court decisions suggests that conventional causal accounts of that Court's decision making may have difficulty explaining the Court's decision to embrace an unenumerated right to marital privacy. Consider, for example, Professor Burt Neuborne's recent argument that "concern over racial injustice and state institutional failure ... played a significant role in shaping" many of the Warren Court's most important decisions. (5) While racial concerns almost certainly exerted significant influence across a broad range of Warren Court doctrines, (6) it seems doubtful that such concerns loomed particularly large in Griswold, which involved a criminal prosecution of two upper middle class white defendants. Likewise, analyses that focus on the ideological compatibility between the later Warren Court of the 1960s and that era's dominant national political coalition seem incomplete as an explanation of Griswold. (7) To be sure, by 1965, national public opinion had tipped decidedly against the policy reflected in the Connecticut contraception statute. (8) But unlike other major social issues addressed by the Warren Court--such as racial justice, voting rights, and protecting the rights of the impoverished--neither contraception nor sexual privacy implicated core concerns of the era's dominant national political coalition. (9) Other general explanatory theories of the Warren Court's approach to constitutional decision making have similar difficulties accounting for Griswold. (10) To the extent scholars have attempted to develop explanatory accounts focusing on Griswold specifically, such accounts have tended to emphasize the social movement activism of birth control advocates and shifting public attitudes toward sexuality, contraception, and women's rights. (11) These influences, combined with the Warren Court's well-known penchant for constitutional perfectionism, are generally presumed to account for both the timing of the Court's decision and for the Court's decision to embrace a doctrine of unenumerated constitutional rights. (12) Contrary to the conventional portrait of the Warren Court as an "activist" tribunal, this account portrays the Justices as playing a largely passive and reactive role--as occupying a place in the rearguard, rather than in the vanguard of constitutional change. (13) To put it in slightly different terms, the social movement account of Griswold tends to emphasize factors external to the judicial process, such as political activism and changes in public opinion and societal mores, rather than doctrinal, intellectual, and other considerations that are more internal to that process. (14) There is a good deal of truth in these narratives. It is difficult to understate the importance of the sustained efforts by the Planned Parenthood League of Connecticut and its supporters in the academic and legal communities who fashioned a litigation campaign that succeeded in placing questions regarding the constitutional status of the right to marital privacy on the Court's agenda and (eventually) persuading the Court to provide an answer. And given the state of national public opinion at the time, the Court's decision to invalidate the Connecticut law was hardly surprising. …