John Roberts Supports a Constitutionally-Tethered Right to Privacy
One revelation from today's hearings concerning the suitability of Supreme Court nominee John Roberts involved his views on the constitutional right to privacy. Hearts were fluttering on both the left and the right.
Democratic Senator Herb Kohl asked Roberts: "The Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception. Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?" One way Supreme Court justices are able to expand precedent is by phrasing the holdings of prior cases in general terms. Roberts reeled the Senator's statement back in: "I agree with the Griswold court's conclusion that marital privacy extends to contraception . . . The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
Kohl announced that he was "delighted" with Roberts' answer because "many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you've essentially accepted . . . the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose." Roberts declined Kohl's invitation to comment, but there is a strong argument that Kohl's unnamed scholars are wrong.
The precise issue before the Court in Griswold in 1965 was whether a Connecticut law that forbid the use of contraceptives invaded the privacy of married individuals. The case centered on the sanctity of marriage and its fundamental values. Justice Douglas in the majority opinion asked: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship." Justice Goldberg in his concurring opinion wrote: "Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection."
Griswold was more about marriage than it was about sexual privacy. Or so the state of Massachusetts thought until the Supreme Court, in the 1972 case Eisenstadt v. Baird, struck down a similarly hardly-ever-enforced law against contraceptives that applied only to unmarried people.
The Court majority admitted that Griswold had been based on the unique marriage relationship, but then, like sly Senators, it spun the case from there: "[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." At that moment, the Court leapt into new territory that laid the foundation for the Roe decision the following year. Eisenstadt is the key evolutionary link between Griswold and Roe.
In sum, Roberts carefully limited himself to the specific holding of the Griswold case, leaving himself a jurisprudential exit if the issue of reconsidering Roe should ever come before him.
Update 9/14/05: Marshall posted this entry at www.Confirmthem.com (a project of Redstate.org) and it is discussed at some length with 34 responses at: http://www.confirmthem.com/?p=1228.
Democratic Senator Herb Kohl asked Roberts: "The Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception. Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?" One way Supreme Court justices are able to expand precedent is by phrasing the holdings of prior cases in general terms. Roberts reeled the Senator's statement back in: "I agree with the Griswold court's conclusion that marital privacy extends to contraception . . . The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
Kohl announced that he was "delighted" with Roberts' answer because "many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you've essentially accepted . . . the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose." Roberts declined Kohl's invitation to comment, but there is a strong argument that Kohl's unnamed scholars are wrong.
The precise issue before the Court in Griswold in 1965 was whether a Connecticut law that forbid the use of contraceptives invaded the privacy of married individuals. The case centered on the sanctity of marriage and its fundamental values. Justice Douglas in the majority opinion asked: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship." Justice Goldberg in his concurring opinion wrote: "Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection."
Griswold was more about marriage than it was about sexual privacy. Or so the state of Massachusetts thought until the Supreme Court, in the 1972 case Eisenstadt v. Baird, struck down a similarly hardly-ever-enforced law against contraceptives that applied only to unmarried people.
The Court majority admitted that Griswold had been based on the unique marriage relationship, but then, like sly Senators, it spun the case from there: "[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." At that moment, the Court leapt into new territory that laid the foundation for the Roe decision the following year. Eisenstadt is the key evolutionary link between Griswold and Roe.
In sum, Roberts carefully limited himself to the specific holding of the Griswold case, leaving himself a jurisprudential exit if the issue of reconsidering Roe should ever come before him.
Update 9/14/05: Marshall posted this entry at www.Confirmthem.com (a project of Redstate.org) and it is discussed at some length with 34 responses at: http://www.confirmthem.com/?p=1228.
posted by The Libertarian Republican at 9:34 PM
2 Comments:
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I admit that I thought Roberts would stop short of endorsing the Eisenstadt decision. However, he later affirmed that decision briefly in an exchange with Senator Feinstein. But, as I wrote in a posting on confirmthem.com today: "Even if Roberts agrees with Eisenstadt or at least believes that it is settled law, it does not cabin him as to Roe."
Here's Proof: Justice Thomas ALSO said that he agreed with Eisenstadt during his hearing.
This came out during Schumer's questioning:
SCHUMER: Yesterday, you stated that you, quote, agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that, unquote. And you noted that the court's later decisions have based the constitutional right to privacy on the liberty component of the due process clause of the 14th Amendment.
Now, Justice Thomas, at his confirmation hearing, answered in a way very similar to the way you did. During his confirmation hearing, here's what he said, quote: I believe the approach that Justice Harlan took in Griswold in determining the -- or assessing -- the right to privacy was an appropriate way to go, unquote.
Now, we all know that Justice Harlan's approach located the right to privacy in the liberty interests of the due pro cess clause of the 14th Amendment.
And Justice Thomas also said at his confirmation hearings, along the same lines, that he agreed with the court decision in Eisenstadt v. Baird, where the court held that single people have the same right to privacy as m arried people on the issue of procreation.
However, since he's been confirmed to the court, Justice Thomas has not applied the right to privacy to keep protections -- for instance, in Lawrence, in 2003, he declared that there is no general right to privacy in the Constitution.
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