Melvin L. WuIf, a lawyer for the American Civil Liberties Union, claims credit for first raising the idea with Harlan in the ACLU’s friend-of-the court brief in Poe v. Uliman. Wulf later explained his strategy for getting the Court to adopt the privacy rights approach:(Men in Black: How the Supreme Court is Destroying AmericaJudges dislike breaking entirely new ground. If they are considering adopting a novel principle, they prefer to rest their decision on earlier law if they can, and to show that the present case involves merely an incremental change, not a wholesale break with the past. Constitutional litigators are forever trying to persuade courts that the result they are seeking would be just a short step from some other case whose decision rests soundly on ancient precedent.In other words, Wulf understood that the Court would be open to rewriting the Constitution by pretending to uphold it. Although Harlan’s was a minority opinion, and had no immediate legal effect, its impact would soon become clear. After Poe was decided, Planned Parenthood officials found a way to get arrested so they could mount another challenge to Connecticut law. In 1965, Justice William Douglas adopted Harlan’s reasoning in the majority opinion in the case of Griswold v. Connecticut, and the right to privacy became constitutional law. Douglas, who was appointed by President Franklin Roosevelt in 1939, is most famous for being the longest-serving justice and, to conservatives, for writing one of the most parodied phrases in Supreme Court history. In order to strike down the Connecticut law prohibiting the sale of contraceptives, Douglas wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Since the issue of sexual privacy had not been raised in any earlier case, we employed the familiar technique of argument by analogy: If there is no exact counterpart to the particular case before the Court, there are others that resemble it in a general sort of way, and the principles applied in the similar cases should also be applied—perhaps even extended a little bit—to the new case. [Emphasis added.]
Don’t be embarrassed if you don’t know what emanations from penumbras are. Young lawyers across America had to pull out their dictionaries when reading Griswold for the first time. A penumbra is an astronomical term describing the partial shadow in an eclipse or the edge of a sunspot—and it is another way to describe something unclear or uncertain. “Emanation” is a scientific term for gas made from radioactive decay—it also means “an emission.”
Douglas’s decision not only found a right to privacy in a penumbra of an emanation, it manipulated the facts of the case...
By Mark Levin :56-57)
That's how the Judiciary sometimes will just pull a position that the ACLU wants out of the stench of its own penumbras. Some legal scholars have noted that it seems as if the American Judiciary has become the public policy wing of the ACLU, as on almost every issue the Judiciary tends to align with the ACLU. It increases its own power as it does, so such a tendency is not surprising among Leftists. It's also what Jefferson said would happen. So now the Leftist focus when it comes to the nomination process tends to be personal and political instead of legal. That is an inversion of a system that was supposed to begin with the crass and the political and refine and define it into legal principles that are changed by passing laws, not some nomination process.
Alito is not going to change things very much, at any rate, so it's not exactly clear why the Left feels the need to go after him personally on pretty much everything. I wasn't around for the nomination process of Ruth Ginsberg, yet I suspect that the Right didn't try to portray her as a person who wants to kill babies and so on. Yet the Left's line of questioning is almost always personal, the argument is that Alito is against the "little guy" and doesn't mind if the "little guy" dies in a mine and so on, poor little fellow. It's always some victimization propaganda, as the Left can't just take a position and let that be that based on some concept, fact, logic or legal principle. No, instead the Leftist mind cannot seem to think conceptually and instead has to attempt to sit in judgment of other people's hearts, feelings, intents and motivations.
[Here is a good example of the Leftist mind, that's about the fourth or fifth time I've written back that intents and motivations are irrelevant when it comes to historical facts and the like. Yet note how it seems that feelings are all that the Leftist mind can work in. If it is an extremely Leftist mind then once its attempts at emotional conditioning and the projections of its own feelings are taken away it often has nothing left to say....and certainly nothing Right.]