Here we are less concerned with specific policies (i.e., abortion) and more generally concerned with Judge Alito's views on whether, and the extent to which, a "right to privacy" can be found in the U.S. Constitution.
Highlights from Day 2 of the Alito Confirmation hearings.
SPECTER: Starting with the woman's right to choose, Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?
ALITO: Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.
SPECTER: Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that.
ALITO: I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment.
SPECTER: Would you agree, also with Eisenstat, which carried forward Griswold to single people?
ALITO: I do agree also with the result in Eisenstat.
SPECTER: Let me move now directly into Casey v. Planned Parenthood, and picking up the gravamem of Casey as it has applied Roe on the woman's right to choose, originating from the privacy clause, with Griswold being its antecedent. And I want to take you through some of the specific language of Casey to see what your views are and what weight you would ascribe to this rationale as you would view the woman's right to choose.
In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail." Pretty earthy language, but that's the Supreme Court's language. And the court went on to say, quote, T"he ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives." Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.
SPECTER: How would you weigh that consideration on the woman's right to choose?
ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system. And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.
SPECTER: Judge Alito, let me move to the dissenting opinion by Justice Harlan in Poe v. Ullman where he discusses the constitutional concept of liberty and says, quote, The traditions from which liberty developed, that tradition is a living thing.
SPECTER: Would you agree with Justice Harlan that the Constitution embodies the concept of a living thing?
ALITO: I think the Constitution is a living thing in the sense that matters, and that is that it is -- it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out -- some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up.
SPECTER: Would you agree with Cardozo in Palco that it represents the values of a changing society?
ALITO: The liberty component of the Fifth Amendment and the 14th Amendment, which I was talking about earlier, embody the deeply-rooted traditions of a country. And it's up to each -- those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations. The principles don't change. The Constitution itself doesn't change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.