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Home Archive Volume 64 Volume 64, Issue 6 ESSAY: Griswold and its Surroundings: The 1963, '64, and '65 Terms
ESSAY: Griswold and its Surroundings: The 1963, '64, and '65 Terms

By L.A. Powe, Jr.Am. U. L. Rev. 1443 (2015)

There were four dominant themes of the mature—post-Frankfurter—Warren Court. First and foremost was ending Jim Crow in the South, a project that began with Brown v. Board of Education. Second was promoting democracy through “one person, one vote.” The third was the reform of the criminal justice system by requiring it to conform to national best practices. The last theme was expanding freedom of expression by ending McCarthy-era persecutions, liberating the depiction of sex from the Victorian Era ideal, and guaranteeing the right to vigorously criticize government. Of course there was considerable overlap among the themes, a point especially clear in the case of race and the criminal justice system. What makes Griswold v. Connecticut4 stand out so sharply is that it does not involve any of these themes and that it led to no further Warren Court decisions on the issue. The latter point is not surprising, as only the three New England states where the Catholic Church held undue influence had anti-contraceptive laws, and the Church, holding a losing hand, immediately capitulated. Thereafter, private entities like Planned Parenthood could offer contraception. So how does Griswold fit in with the Warren Court, if it fits in at all? To explore that question I will look at the 1964 Term (in which the Court decided Griswold) and the Terms immediately before and after. I have limited the data to the Terms on each side of Griswold for a couple of reasons. First, the 1963 Term was the coming together of the liberal five-man majority, confident in America and their own abilities to improve it. Second, the 1965 Term marks the last Term before the constant summer race riots and deepening war in Vietnam soured the liberal mood in the country. As a result, the 1966 mid-term elections produced sweeping Republican victories.

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