Monday, August 08, 2005

Does John Roberts Believe in a Right to Privacy? - Part 4

The New York Times has an article today discussing John Roberts' views on privacy, though they remain little known, since his writings almost all come from his days advocating on behalf of someone else.

The headline is: "Privacy Views: Roberts Argued Hard for Others," the article is by Adam Liptak.

The article suggests that Roberts holds a skeptical view of the reasoning of cases like Roe v. Wade and Griswold, putting him in the same camp as Rhenquist and Robert Bork, (among others) but that it is difficult to say whether, after all this time, he believes they are settled law or not.

One part reads:

"In a draft article for Attorney General William French Smith that year, Judge Roberts wrote that the Supreme Court should not interpret the Constitution to give rise to new rights.

"All of us, for example," he wrote, "may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.' "

The quotation was a telling one. Justice Hugo L. Black's dissent was in Griswold v. Connecticut, a 1965 case in which the Supreme Court struck down a Connecticut law that made the use of contraceptives a crime. It was, Justice Potter Stewart wrote in his own dissent, "an uncommonly silly law." But, the dissenters said, the Constitution did not give courts the power to strike down even silly laws unless they were in direct conflict with a constitutional command.

Justice William O. Douglas, writing for five of the seven justices in the majority, said the law was at odds with a fundamental constitutional right to privacy. The right, he said, was implicit in or suggested by guarantees in the First, Third, Fourth, Fifth and Ninth Amendments. The "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees," Justice Douglas wrote in explaining the roots of the right to privacy."

For the full text of the article, go to


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