Tuesday, September 13, 2005

John Roberts & the Right to Privacy - Part 5

In a Senate hearing today, several Senators aggressively question Judge Roberts on his understanding of the concept of a Constitutional right to privacy.

The hearing had barely begun before the Chair went to straight to the privacy law issue:


"It is 9:30. The confirmation hearing of Judge Roberts will now proceed. Welcome, again, Judge Roberts."

ROBERTS: "Thank you, Mr. Chairman."


"We begin the first round of questioning in order of seniority, with 30 minutes allotted to each senator. Judge Roberts, there are many subjects of enormous importance that you will be asked about in this confirmation hearing, but I start with the central issue which perhaps concerns most Americans, and that is the issue of the woman's right to choose and Roe v. Wade."

A few minutes later, Specter said:

"I want to get right to the core of the issue. In Casey, [Casey v. Planned Parenthood] the key test on following precedents moved to the extent of reliance by the people on the precedent.

And Casey had this to say in a rather earthy way: People have ordered their thinking and living around Roe. To eliminate the issue of reliance, one would need to limit cognizable reliance to specific instances of sexual activity. For two decades of economic and social developments, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail. That's the joint opinion; rather earthy in its context. Would you agree with that? "

Roberts replied:

"Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the Casey opinion, but also in other opinions outside that area of the law. The principles of stare decisis look at a number of factors. Settled expectations is one of them, as you mentioned. ROBERTS: Whether or not particular precedents have proven to be unworkable is another consideration on the other side -- whether the doctrinal bases of a decision had been eroded by subsequent developments. For example, if you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent."

Roberts came close to supporting precendent a few minutes later, stating:

"Well, in the particular case of Roe, obviously you have the Casey decision in 1992, '93... in which they went through the various factors on stare decisis and reaffirmed the central holding in Roe, while revisiting the trimester framework and substituting the undue burden analysis with strict scrutiny. So, as of '92, you had reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be ENTITLED to RESPECT under those principles."

That was followed by this exchange:


"The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. Do you agree with that statement, Judge Roberts?"


"Well, YES, Senator, as a general proposition, but I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions."

They went back and forth over the merits of overruling precendent, prompting these remarks:

ROBERTS: "I do think that it is a jolt to the legal system when you overrule a precedent."

SPECTER: "A jolt to the legal system, a movement against stability, one of the Roberts doctrines."

Roberts went on to agree that Roe and Casey are setteld law, and that his religion would not prevent him from applying the law.

Then Specter asked the big question:


".... You wrote, quote, that, Solicitor General Griswold devotes a section to the so-called right to privacy; acquiring, as we have -- that such an amorphous arguing, as we have, that such an amorphous right was not to be found in the Constitution. Do you believe today that the right to privacy does exist in the Constitution?"


"Senator, I do. The right to privacy is protected under the Constitution in various ways. It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected. It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise. It protects privacy in matters of conscience. It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops. And in addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause. The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well. And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution."

*** BIDEN ***

Later, Joseph Biden questioned Roberts:


"You have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think? Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?"


"I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another. Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition."

BIDEN: "Do you think there's a liberty right of privacy that extends to women in the Constitution?"

ROBERTS: "Certainly."

BIDEN: "In the Fourteenth amendment?"

ROBERTS: "Certainly."

*** KOHL ***

Later, Sen. Kohl addressed the issue:

KOHL: "Judge, as we all know, 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?"


"I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.

And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach."


"Well, I'm delighted to hear you say that because, as you know, 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 -- scholars have said this -- essentially accepted the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.

These scholars reason that it follows logically that, if a woman's right to privacy and her control of her body includes the right to contraception, that it also includes a woman's right to choose to terminate her pregnancy.

I am not sure whether you wish to comment on that. I just wanted to point out to you something that I'm sure you are familiar with, that there is, in constitutional thought, a follow from Griswold to Roe."


"Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. It was surprising when it came before the court in 1965, I think, to many people. The other area is an area that is, to quote Justice Ginsburg from her hearings, live with business. There are cases that arise there. And so that's an area that I do not feel it appropriate for me to comment on."


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