Penumbras, Presidential Immunity, and Pure Politics at the Supreme Court

For many decades, conservative judges, law professors, and political pundits ridiculed Justice Douglas' reasoning in the landmark case Griswold v. Connecticut. While striking down a statute that forbade all contraception use and prohibited doctors from giving advice about contraception, Justice Douglas relied on six constitutional provisions to find a right to privacy in the Constitution because "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." A few years later, Roe was based on the right to privacy. 

The disgust on the right for Douglas' penumbras and emanations reasoning has been severe, often cruel, and always dismissive. One commentator observed that "perhaps the most important and puzzling spatial metaphor in American constitutional law is Justice Douglas' 'penumbra' from Griswold v. Connecticut."

In one of the most famous law review articles ever written, Robert Bork, then a law professor, compared constitutionally protecting the non-textual right to privacy to people raising constitutional objections to paying higher prices for electricity from a public utility. He said there was no way to objectively say one claim was more important than the other. He criticized Douglas' reasoning in Griswold as follows:

The Griswold opinion fails every test of neutrality. The derivation of the principle was utterly specious, and so was its definition. In fact, we are left with no idea of what the principle really forbids. Derivation and definition are interrelated here. Justice Douglas called the amendments and their penumbras "zones of privacy," though of course they are not that at all. They protect both private and public behavior and so would more properly be labelled "zones of freedom." If we follow Justice Douglas in his next step, these zones would then add up to an independent right of freedom, which is to say, a general constitutional right to be free of legal coercion, a manifest impossibility in any imaginable society.

A consistent talking point at Federalist Society conferences and among constitutional conservatives over the last forty years has been the alleged absurdity of the penumbras and emanations language in Griswold. Of course, most people think that states should not be banning contraception, but the right to privacy was the cornerstone of Roe, and that put a huge target on the back of this metaphor. Professor Robert Dixon wrote: “The actual result of Griswold may be applauded, but was it necessary to play charades with the Constitution?” Another has said, "Griswold, though plainly an incidence of judicial activism, was not an unpopular decision."

The penumbras language from Griswold, whatever folks thought about the ultimate holding, became the most important symbol to legal conservatives of the alleged overreaching and judicial activism of the Warren Court. Most law students in the 1980's and 1990's would likely have heard from conservative professors that Griswold was a terrible decision and an interpretative abomination because of the penumbra language. Those students are today's judges and academics.

But all this hemming and hawing over the penumbras and emanations language by constitutional conservatives has proven to be nothing more than hypocritical whining. There is a huge overlap between academics and judges who criticize Griswold's reasoning and those who also support the non-textual, penumbra-laden federalism decisions decided by the Rehnquist and Roberts Courts over the last three and-a-half decades. 

In Seminole Tribe of Florida v Florida, the Court reaffirmed a post-Civil-War decision holding that states can’t be sued by their own citizens in federal court pursuant to the 11th Amendment, which by its express terms applies only to lawsuits brought against a state by “citizens of another state.” About this textual somersault, the Court said, “Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms."

In Alden v Maine, the Court held that states have sovereign immunity in their own courts from federal lawsuits even though the 11th Amendment by its express terms applies only in federal court because "behind the words of the constitutional provisions are postulates which limit and control.” 

Penumbras and emanations are apparently a bridge too far for conservatives but not so for postulates and presuppositions behind or surrounding the text.  It must also be pointed out that unlike most of the textually imprecise constitutional clauses Douglas relied upon in Griswold, the text of the 11th Amendment is crystal clear. That disconnect is important. It is one thing for judges to use penumbras and postulates to flesh out indeterminate constitutional language but quite another to use postulates behind the text to reverse the meaning of clear constitutional language, as the conservative justices have treated the 11th Amendment.

The Supremacy Clause and the Tenth Amendment unambiguously state that valid federal law is supreme over state law and that the states reserved at the Founding only those powers not given to the federal government by such provisions as the commerce clause. In New York v. United States, the Court held that, even if Congress is regulating commerce among the states, it may not require state legislatures to address serious problems like the storage of radioactive waste because of a made-up, non-textual rule that Congress cannot commandeer state legislatures even when acting under an enumerated power. This "anti-commandeering" principle was later extended to state executives (but bizarrely not to state courts).

Justice Stevens dissented in these cases and said that the "notion that Congress does not have the power to issue a simple command to state governments to implement legislation enacted by Congress is incorrect and unsound. There is no such limitation in the Constitution. The Tenth Amendment surely does not impose any limit on Congress’ exercise of the powers delegated to it by Article I."

Might conservatives try to argue that there is a difference between individual rights cases and structural cases when it comes to adopting non-textual principles. I doubt such an argument would be coherent but, even if it were, one of the main historical objections made by conservatives to Griswold and Roe has been that the rights to contraception and abortion are not mentioned in the Constitution. But the conservative justices have also affirmed non-textual individual rights such as the freedom to raise children as parents see fit, the right of competent adults to refuse medical treatment, and, depending on one's view of the Second Amendment, the right to keep and bear arms separate from militia service.

A person who believes in penumbras and emanations in individual rights cases is entitled to say the same about federalism and separation of powers cases, but folks who criticize and mock the Griswold language and reasoning should not adopt exactly the same type of reasoning to reach preferred results in other cases. However, that is exactly what the legal right has now done for decades. All of which leads us to Presidential Immunity.

In the 1974 decision United States v. Nixon, the Court held that the President had a presumptive constitutional privilege not to release tapes of confidential communications he had with his top advisors, but that privilege was outweighed by the need for evidence in a criminal cases (against other defendants). That presumptive "privilege" is nowhere in the text of the Constitution but the tapes were released, Nixon resigned a few days later, and no political harm was done at the time in the eyes of most academics and judges.

The same cannot be said for Nixon v. Fitzgerald, which held that Presidents have complete and absolute immunity from civil suits forever for acts taken within the outer boundaries of their official duties. This decision was and still is controversial. Many Court followers agree with Justice White in dissent who said that "attaching absolute immunity to the Office of the President, rather than to particular activities that the President might perform, places the President above the law. It is a reversion to the old notion that the King can do no wrong."

And, of course, this term the Court held that Presidents have complete immunity from criminal prosecution after they leave office for all acts taken pursuant to direct constitutional authority (such as the Pardon power), presumptive immunity for acts taken under authority given to the President by Congress, and no immunity (of course) for unofficial acts. 

Those categories are not terrible but the Court effectively immunized Trump and future Presidents from any real threat of prosecution by inexplicably holding that conversations between the President and his advisors cannot be used to establish unofficial conduct nor can evidence of official conduct be employed by prosecutors to demonstrate unofficial conduct. And, to top it all off, evidence of the President's motives is inadmissible. The Court made up these rules, which are not supported by the text or history of the Constitution, which led Justice Sotomayor to end her well-taken dissent dramatically but realistically:

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent. 

There is not a syllable in the text of the United States Constitution supporting a presumptive privilege of presidential communications, an absolute immunity barring all civil suits against the President, or any immunity against criminal prosecution after leaving office. In fact, the Impeachment Clause specifically anticipates criminal prosecutions against former Presidents:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

And even more problematically, if that is possible, the Constitution specifically provides a limited immunity for members of Congress in certain circumstances, so we know that the Framers understood how to give government officials immunity when they wanted to do so. For the Court to create a common law immunity for the President for his criminal acts with serious limits on how the prosecution can prove the President committed unofficial acts is penumbras and emanations on steroids.

Conservative legal academics, judges, and politicians for decades accused the Warren and Burger Courts of not taking text seriously and engaging in result-oriented jurisprudence. Griswold and Roe were exhibits 1 and 2 in that on-going commentary. But it turns out, as it almost always does within constitutional law, that the strong objections to the reasoning and processes of Griswold and Roe had nothing to do with process and reasoning and everything to do with politics and ideology. Conservatives have now taken penumbras and emanations to a new level of aggressive judicial review across a broad spectrum of constitutional litigation. 

These important and country-changing decisions are simply pure politics by the conservative justices, nothing less and nothing more. They emanate from the penumbras of the Republican Party Playbook.