Robinson v. California (1962) may be peak Warren Court activism. California made it a crime to be addicted to narcotics–not simply to use drugs, but to be addicted to using them. Robinson argued that this law violates some sort of substantive due process right. This was three years before Griswold, so the Court still was stuck under the New Deal settlement that rejected substantive due process. So what does the Warren Court do? It manufactures a new standard based on the Eighth Amendment out of whole cloth. Sort of like a penumbra. (Griswold favorably cites Robinson.) The Robinson Court held that it would violate the Eighth Amendment to punish someone because of the "status" of being a drug addict. The Court ruled that when punishing "'status,'" "[e]ven one day in prison would be . . . cruel and unusual." Id., at 666–667.
This argument was not raised by the defendant. Justice Gorsuch's majority opinion explains:
Reaching that conclusion under the banner of the Eighth Amendment may have come as a surprise to the litigants.Mr. Robinson challenged his conviction principally on the ground that it offended the Fourteenth Amendment's guarantee of due process of law. . . . Mr. Robinson's resort to the Eighth Amendment was comparatively brief. He referenced it only in passing, and only for the proposition that forcing a drug addict like himself to go "'cold turkey'" in a jail cell after conviction entailed such "intense mental and physical torment" that it was akin to "the burning of witches at the stake." Robinson Brief 30. The State responded to that argument with barely a paragraph of analysis, Brief for Appellee in Robinson v. California, O. T. 1961, No. 61–554, pp. 22–23, and it received virtually no attention at oral argument.
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