Judge Roberts and the Right to Privacy

The following exchange between Senator Specter and Judge Roberts in the confirmation hearing yesterday should give conservatives real pause about him. One of the conservatives main beefs with the judiciary is their finding the right to privacy in the Constitution. To conservatives there is no such right in the Constitution. In the following exchange, Judge Roberts unequivocally says that there is a right to privacy in the Constitution. While different judges will determine what the right to privacy incorporates differently, as in whether he will find new protections under the right to privacy, he does admit there is such a right to privacy and, whether he agrees with the outcome of the cases or not, it will make his overturning established Supreme Court precedent much harder as in the fundamental right to abortion, consentual sexual relations, etc. Here is the exchange:

SPECTER: Judge Roberts, the change in positions have been frequently noted. Early on, in one of your memoranda, you had made a comment on the so-called right to privacy. This was a 1981 memo to Attorney General Smith, December 11th, 1981. You were referring to a lecture which Solicitor General Griswold had given six years earlier and 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?

ROBERTS: 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.

SPECTER: So that the views that you expressed back in 1981, raising an issue about amorphous and so-called, would not be the views you’d express today?

ROBERTS: Those views reflected the dean’s speech. If you read his speech, he’s quite skeptical of that right. I knew the attorney general was. And I was transmitting the dean’s speech to the attorney general, but my views today are as I’ve just stated them.

So they weren’t necessarily your views then, but they certainly aren’t your views now?

ROBERTS: I think that’s fair, yes.


  1. Mouth of the South says:

    Are conservatives actually worried about this statement? Or are they sort of masquerading as worried so that the left thinks, “hey, if the conservatives aren’t all that pleased, maybe we should be all that upset”?

    All he is doing is giving the current state of precedent on the issue, not just right to privacy but how the liberty interest in the 14th should be viewed. Conservatives should actually be excited that he is tying the two together because it links him to the side of the argument against the penumbra argument of Douglas in Griswold which is the real origin of the right to privacy in Supreme Court discourse. Douglas found the right to privacy in the Constitution as part of the penumbras created by the rights inherent in the 1st, 3rd, 4th and 5th amendments, so when Judge roberts links the right to priacy so closely to the 4th, it is really an abridgement of the rhetoric associated with the right. If the right to privacy can be dislodged from its source in the 1,3,4, and 5, and have its source attacked as merely being from the 4th and 14th, then it makes a wide ranging right harder to apply in situations that aren’t quite apposite to past 14th amendment decisions.

  2. Erick says:

    I don’t see anything upsetting about his statement. He made a factual statement and, what I find very interesting, separated out what was in the constitution and what judges found hidden in the constitution.

  3. Erick says:

    One more that should have liberals concerned. Immediately after that, Roberts was asked if he agreed with Griswold v. Connecticut, the case from which Roe and its progeny (including Lawrence) have found legal justification. Roberts’s response was, “I agree with the conclusion in Griswold” [Emphasis added]

    So, he agrees the conclusion that the right to contraceptives is part of the privacy right, but (and this is the key) he specifically does not say he agrees with the reasoning behind Griswold, just its conclusion. That should disturb many a jurisprudential liberal, because that is a very classy and lawyerly dodge on the overriding issue.

  4. Decaturguy says:

    I think y’all are all looking at this guy with rose colored glasses. This guy has the potential to be a Chief Justice in the mold of a Kennedy or O’Connor rather than a Rhenquist or a Thomas or Scalia and you know it. You’re, understandably, hoping for the best, but the man said that the right to privacy is “protected as part of the liberty in the due process clause under the Constitution.” That should make conservatives sick to their stomach.

  5. Decaturguy says:

    Now you add to it, Robert’s apparent belief about the powers of Congress under the Commerce Clause. Based on the following exchange between Senator Schumer and Roberts, Congress essentially has the power to regulate anything:

    SCHUMER: OK. Let me ask you, then, this hypothetical: And that is that it came to our attention, Congress’, through a relatively and inexpensive, simple process, individuals were now able to clone certain species of animals, maybe an arroyo toad. Didn’t pass over state lines; you could somehow do it without doing any of that. Under the commerce clause, can Congress pass a law banning even noncommercial cloning?

    ROBERTS: I appreciate it’s a hypothetical, and you will as well, so I don’t mean to be giving bindings opinions. But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce. Obviously if you were successful in cloning an animal, that’s not going to be simply a local phenomenon. That’s going to be something people are going to…

    SCHUMER: We can leave it at that. That’s a good answer, as far as I am concerned

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