This exchange (edited, some emphasis added) took place between Senator Schumer and John Roberts yesterday (September 14):
"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 process 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 married 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.
Now, yesterday you said that, quote, LIBERTY is not limited to freedom from physical restraint.
SCHUMER: It does cover areas, as you said, such as PRIVACY. It's not only protected in procedural terms, but protected substantively as well.
You said that you agreed that, quote, There's a RIGHT TO PRIVACY to be found in the liberty clause of the Fourteenth Amendment.
So that seems directly to contradict Justice Thomas' view, once he got on the court, as I outlined, in Lawrence.
I assume that you disagree with Justice Thomas's view that there is no general right to privacy, as he stated in Lawrence."
"Well, I think that question depends, obviously, on the modifier and what you mean by general. I noted in going over the nomination hearings of Justice Breyer, he also said that the privacy interest is protected as part of the liberty protected by the due process clause. I think that is the general approach. Now, the..."
"Let's talk about Justice Thomas. He said there is NO GENERAL RIGHT OF PRIVACY. You seemed to say yesterday -- you didn't seem to say; you said, that there WAS a right to privacy.
Let's forget that Justice Thomas said it. You would disagree that there is no general right to privacy in the Constitution."
"I wouldn't use the phrase general, because I don't know what that means. I don't know if by saying general they're trying to describe the particular scope to the right to privacy or not. I think there IS a right to privacy protected as part of the liberty guarantee in the due process clause."
"A substantive right to privacy?"
"It's protected substantively, YES."
"Your reading of Justice Thomas' case in Lawrence, that he does NOT believe in that?"
"NO. I think his statement obviously focused on general. And his conclusion in that case was that the right to privacy protected under the due process clause that you noted he acknowledged at his hearings did not extend to include the activity at issue in Lawrence."
"This is obviously very important, because Justice Thomas seemed to be more full in his view of privacy at his confirmation hearing than later, when he was on the court, at least if you read his decisions. And you are NOT willing to say that your view is DIFFERENT than the view Justice Thomas stated in Lawrence."
"I'm not willing to state a particular view on the Lawrence decision. And that's consistent with the approach that I've taken..."
"Let me ask you a broader question. Do you disagree with Justice Thomas' interpretation of the right to privacy in ANY decided case?"
"Senator, I'm not going to comment on whether I think particular cases were correctly decided or not, in areas..."
SCHUMER: "I didn't ask that."
ROBERTS: "Well, I don't know which cases you're talking about."
SCHUMER: "Any -- any one you want."
"Well, that would be commenting on whether that decision was correctly decided or not. If I'm agreeing or disagreeing with one of the justice's views in that case, that would be commenting on whether that view was correct or not. If it was in a dissent, it would be disagreeing."
"If it was in the majority, it would be agreeing. And because those are in areas that could come before the court, like every other nominee to come before this committee who's on the court today, I think it's inappropriate to comment on the correctness or incorrectness of those decisions in areas that could come before the court."
"So, you're not -- you don't have to answer this. It's obvious you will not state where you disagree with Justice Thomas, and it could well be that what he said at his hearing and you said at your hearing might lead to -- might -- lead you to rule in the same way on privacy."
"Well, again, my view on privacy -- as I've expressed, but there IS a right to privacy, protected as part of the liberty under the due process clause."
SCHUMER: "Would you say there's a general right to privacy?"
ROBERTS: "I don't know what general means."
SCHUMER: "Substantive right to privacy."
ROBERTS: "Well, SUBSTANTIVE, YES. I have said that, that the protection extends to substantive protection. But when you say general, I don't know what that means. I don't know if that means..."
SCHUMER: "Excuse me. Didn't Justice Thomas disagree with the substantive right to privacy in Lawrence?"
ROBERTS: "His conclusion was that the liberty protected by the due process clause did NOT extend to that right, yes."
SCHUMER: "Thank you. So, it would seem to me you DISAGREE with him. I think you said it without saying it."
ROBERTS: "NO, Senator, you're asking me whether the right to privacy protected under the liberty clause extends to a particular right, the right at issue in Lawrence."
SCHUMER: "I think what I'm asking you: Is there a substantive right to privacy? I don't apply it to a particular case."
ROBERTS: "I have said there IS A SUBSTANTIVE RIGHT TO PRIVACY."
SCHUMER: "And in Lawrence, Justice Thomas seemed to say there is NO substantive right to privacy."
ROBERTS: "NO, as I understand it -- again, his testimony as a nominee was that there was. What he said was -- the quote you read in Lawrence --said there's no general right to privacy. Now, I don't know..."
SCHUMER: "His holding was that there was NO substantive right to privacy under the liberty clause. Wasn't it? Wasn't that the whole thrust of his argument?"
ROBERTS: "NO, I think, Senator, that his conclusion in Lawrence was that whatever right there was, it did not extend to the activity that was at issue in Lawrence."
SCHUMER: "Bottom line is: You're unwilling to differentiate yourself from Justice Thomas's view on Lawrence."
"Well, it's consistent with the approach I've taken that I don't think it's appropriate to protect -- necessary to protect the independence and integrity of the court, to comment on whether that decision was correctly decided or not. And that is consistent with the approach that every member of the court..."
SCHUMER: "Yes, I just didn't ask you that. I asked if you disagreed with his particular holding."
*** FEINSTEIN ***
Later, Diane Feinstein had these questions:
"Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause."
Do you think that right of privacy that you're talking about there extends to single people, as well as married people?"
"The courts held that in the Eisenstat case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstat."
"OK. Do you think that that same right extends beyond family choices then about a child's education?"
"Well, that's where it actually got started 80 years ago in the earliest cases. Meyer and Pierce involved questions about how to raise children, whether you could teach them a foreign language, whether you could send them to a private school. And those decisions are really what started that body of law."