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. (15)
But as is the case with most narratives, the truths told by the social movement account of Griswold are partial and incomplete. (16) For example, if social movement activism and national public opinion alone were sufficient to account for the Court's decision, it would be difficult to explain why a declaration of the Connecticut law's unconstitutionality did not occur until (1965). The litigation campaign seeking to overturn restrictive contraception laws had emerged decades earlier and had already achieved a substantial measure of national success prior to the outbreak of World War II. (17) A constitutional challenge to the specific statute that was eventually invalidated in Griswold first reached the Supreme Court in 1943. (18) And even at that early date, the policy reflected in Connecticut's law--i.e., the criminalization of contraceptive use by married couples--was opposed by overwhelming majorities at the national level. (19) The Court nonetheless chose to dodge the question, as it did again when the issue reached the Court a second time in 1961. (20)
Nor does the social movement story explain the Court's choice of doctrinal framework to rationalize its decision. Although it is perhaps understandable for modern observers to assume that the approaches surveyed by the various opinions in Griswold exhausted the conceptual possibilities available to the Justices, (21) contemporary observers recognized the availability of other possible bases for the Court's decision that would not have required according the unenumerated right to "privacy" the type of strong constitutional protection that had previously been reserved to rights specifically listed in the Constitution. (22)
The goal of this Article is to develop a fuller picture of Griswold by situating the case within a series of doctrinal and jurisprudential debates and developments that were prominent at the time of the Court's decision but that have faded in significance over time. This alternative picture of Griswold shifts the focus away from viewing the case as one about birth control, sexual privacy, and women's autonomy and toward viewing the decision as one about interpretive method, constitutional theory, and the Supreme Court's role within the national political system. This alternative perspective on Griswold has by no means gone unnoticed in the massive volume of scholarship discussing the case. But for the most part, such discussions have focused on efforts to either rationalize the result of the case (23) or to criticize its reasoning. (24) This Article approaches the case from a different perspective--seeking to neither rationalize nor criticize, to neither praise nor condemn--but rather to simply understand. (25)
The history of the litigation campaign that culminated in Griswold is a story that has been told, and told well, by others. (26) Summarizing greatly, the story can be encapsulated as follows: in the late nineteenth century, a social reform movement led by moral campaigner Anthony Comstock persuaded Congress and the legislatures of multiple states to pass "obscenity" laws that, among other things, prohibited or greatly restricted the sale and use of contraceptives. (27) The Connecticut legislature enacted one such law in 1879, which prohibited the "use[ ]" of "any drug, medicinal article or instrument for the purpose of preventing conception." (28)
During the early decades of the twentieth century, birth control advocates succeeded in persuading courts at the federal level and in many states to interpret similar statutes narrowly, by imputing to them an implied "health" exception that allowed for widespread circumvention. (29) But this strategy did not succeed everywhere. In 1940, Connecticut's highest court refused to interpret the 1879 statute as containing a broad "medical needs" exception of the type that had been recognized by other courts. (30) Birth control advocates in Connecticut thereafter embarked on a multi-pronged campaign to repeal the law, including both efforts aimed at legislative repeal and litigation challenging the law's constitutionality.
THE PATH TO JUSTICIABILITY
The procedural path that the constitutional challenges to the 1879 Connecticut law were forced to navigate was long and arduous, even by the standards of modern constitutional litigation. The principal obstacles standing in the way of an early resolution by the Supreme Court were a set of self-imposed constraints that limited the Court's ability to decide constitutional questions. These limitations were just beginning to take on their modern form at around the time the first constitutional challenges to the Connecticut law arrived at the Court.
It is now conventional to trace the development of the Supreme Court's modern doctrines of standing and related justiciability limitations to the middle decades of the twentieth century and particularly to the decisions of the post-New Deal Court under Chief Justices Stone and Vinson. (31) The development of these doctrines reflected the influence of certain prominent strains of progressive and New Deal legal thought, which emphasized judicial restraint and the importance of allocating decision-making authority to the most competent institutions. (32) The doctrines also had a more practical dimension as a means of insulating New Deal regulation from judicial review. (33)
In his 1936 concurrence in Ashwander v. Tennessee Valley Authority, (34) Justice Brandeis identified seven self-limiting principles through which the Court might "avoid [ ] passing upon ... constitutional questions" unnecessarily.* 34 35 These limitations included the principle that courts should not "anticipate a question of constitutional law in advance of the necessity of deciding it," (36) nor "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied," (37) nor...