By Daniel Henninger



" Michael Moore, who somehow has kept his name afloat since he made a movie about George W. Bush 14 years ago, says he wants to surround the U.S. Capitol with a million protesters so the Senate won’t be able to vote on President Trump’s Supreme Court nominee. He asks: “What would you give your life for?”

The day after Justice Anthony Kennedy resigned, the New York Times’s editorialists addressed “those who face the future in fear after Wednesday.” Lest anyone miss the point, the Times said: “It is a dark moment in the history of the court and the nation, and it’s about to get a lot darker.”

All this panic is supposed to be about the future of Roe v. Wade, the 1973 decision establishing abortion as a right. In fact, the threat to Democratic political rule is even bigger than Roe, which was about just one thing. What is at risk is the rationale for judicial overreaching that was created in the court’s 1965 decision, Griswold v. Connecticut.

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. This results-driven view is what routinely sent Justice Antonin Scalia into eloquent and volcanic dissents.

Though capable of rigor in his reasoning, Anthony Kennedy was willing to swing toward decisions that simply affirmed what he thought were ascendant cultural mores. With the Trump Supreme Court nominations, this long era of judge-made law is at risk, if not over.

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.


As the Times editorial suggests, the left seems to believe the Supreme Court will virtually cease to exist as a branch of government. That puts liberals in a tough spot, because they had already thrown in the towel on the legislative branch.

From the 1970s onward, modern liberalism increasingly came to rely on filing lawsuits to effect policies that couldn’t survive passage through representative bodies like the House and Senate. Or they deployed executive mandates—which reached an apotheosis with Barack Obama.

Former Senate Majority Leader Harry Reid ended the filibuster for appellate-court nominees so his party could pack the D.C. Circuit with judges who would affirm the Obama regulatory orders that covered vast swaths of American life.

Having all but abandoned the legislative branch to achieve their goals, progressives now think the Trump Supreme Court nominations will close off the judiciary as a policy tool. Thus, the hysteria.

In the Carpenter case this term, Justice Gorsuch wrote a long dissent, which didn’t mention “penumbras,” but it’s clear he knows exactly when the trouble started: “From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the ‘reasonableness’ of your expectations or privacy. It was tied to the law.” Justice Gorsuch calls judging rooted in law “the traditional approach.” I’m for it.

Our confusing culture could itself kill penumbral legal reasoning. One can imagine the high court struggling to adjudicate cases based on ever more arcane claims for self-identity, diversity and privacy. Contorting itself even further to accommodate incomprehensible rights could discredit the court with a strong majority of the American people.

Despite his reputation as the swing vote on cultural issues, Justice Kennedy appeared to understand that we have arrived at a crossroads. In several opinions this term, he essentially issued statements of belief.

Here, in Nifla v. Becerra, is the co-author of Planned Parenthood v. Casey explaining why pregnancy-service agencies should not be compelled to issue a state’s abortion notification: “It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it.” He is saying to his liberal colleagues in the judiciary: Enough is enough.

Some argue that Mr. Trump filled the Scalia seat with Justice Gorsuch and now is obligated to fill the Kennedy “swing” seat with another Kennedy. He is under no such obligation. What President Trump should do is complete his already stellar Gorsuch bench. That would mean a justice who respects the law’s traditions and understands its limits. "

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