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.