Justice Stewart in Griswold and Roe

[Thomas Keck]

>From page 129 of The Most Activist Supreme Court in History (i.e.,
shameless plug):

"It was clear by this point [i.e., 1973] that while Douglas had
articulated the constitutional right to privacy in an effort to avoid
reliance on substantive due process, this line of doctrine had in fact
developed into a species of that argument. [Footnote 37: As Stewart
noted in his concurring opinion in Roe, the Court had 'understandably
d[one] its best to avoid reliance on' substantive due process in
Griswold, since it had 'purported to sound the death knell for the
doctrine' just two years earlier in Ferguson v. Skrupa. But since the
Connecticut statute did not violate any specific provision of the
Constitution, 'it was clear to me then, and it is equally clear to me
now, that the Griswold decision can be rationally understood only as . .
. one in a long line of pre-Skrupa cases decided under the doctrine of
substantive due process, and I now accept it as such.' 410 U.S. 113,
167-68 (1973).]"

--
Thomas M. Keck
Department of Political Science
Maxwell School of Citizenship and Public Affairs
100 Eggers Hall, Syracuse University
Syracuse, NY 13244-1090
(315) 443-5862 (ofc)
(315) 443-9082 (fax)
http://faculty.maxwell.syr.edu/tmkeck/

 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, September 22, 2005 4:52 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Justice Stewart in Griswold and Roe

	Justice Stewart dissented in Griswold, but voted with the
majority in Roe, having apparently been reconciled to the Griswold
decision.  Did he change his mind?  Just decide that Griswold was not
just precedent, but precedent that was worth extending?  I'm sure there
must be some stuff written on this, but our library and I couldn't find
anything; if others can help me with this, I'd be much obliged.

	Eugene
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