Supreme Court decisions don’t often produce phrases that enter the vocabulary of political life, but Griswold did. The phrase is “penumbras formed by emanations.”
Griswold is worth recalling because it established a right to privacy, though the Constitution says nothing about any such right. Justice William O. Douglas famously explained how this could be, arguing that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Douglas’s “penumbras” decision, though ridiculed, defined the post-’60s era of “judge-made law,” in which achieving a result that reflected liberal values or policy goals mattered more than the legal reasoning to justify it.
First with Neil Gorsuch and now with Justice Kennedy’s successor, Donald Trump is putting a stop to ruling by penumbra. It’s a historic shift, and Mr. Trump’s opponents are going absolutely crazy.
Daniel Henninger (paywall)
I’ll feel somewhat more confident that ending “ruling by penumbra” rather than inaugurating “conservative activism” is what Trump’s up to on the court if he picks Brett Kavanaugh. Kavanaugh is sometimes faulted by conservative activists for ruling too narrowly. We could use a little more of that at the moment.