August 8, 2005

A dangerous, cramped, narrow view of the right of privacy?

Noting the belief that Robert Bork was defeated because he disaffirmed the right of privacy, Adam Liptak tries to discern what Supreme Court nominee John Roberts thinks on the subject.

He quotes an article Roberts drafted in 1981 for Attorney William French Smith:
"All of us, for example," he wrote, "may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.' "
Liptak then quotes Harvard lawprof Larry Tribe:
Laurence H. Tribe, a law professor at Harvard, said the views expressed in Judge Roberts's draft article were at the time "still at least marginally defensible although, by my lights, misguided even then."

This was no longer the case, Professor Tribe said, after Judge Bork's nomination was defeated, an action that he and many other liberal law professors supported. "It was not until the mid-1980's," Professor Tribe said, "that intervening developments could be said to have exposed such views as resting on so cramped and narrow a concept of liberty that any nominee committed to a project of restoring them to the law posed a danger to the American Constitution."
"Still ... even then"? You don't get much clearer markers of a belief in an evolving Constitution. And what are the "intervening developments" that "exposed" the dangerous narrowness of the view expressed in the Roberts' draft? The Bork hearings?

Actually, the Roberts' quote doesn't clearly disavow the right of privacy. It's certainly nothing like the flat ridicule Bork aimed straight at the right. The quote is fussing over "an abstraction" that becomes too free-wheeling and gets elevated over other rights that also require attention. It looks to me that all Roberts is saying is that we need to be careful articulating the right of privacy. Ironically, he simultaneously frets about imprecise interpretation and fails to tell us exactly what he has in mind.

I'd advise you to watch out for that sort of thing.

And watch out for statements like Tribe's too. He's spouting generic verbiage that mostly means: liberals expanded constitutional rights to a point that is good, and if anyone tries to touch them we're going to slam you.


Geek, Esq. said...

Roberts also talks about the "so-called right to privacy." That's a Borkian statement.

To put things in perspective, it seems likely that the SCOTUS, with him on board, would be one vote away from engaging in the single biggest judicial rollback of personal freedom this country has ever seen.

Forget about Roe: Griswold is on the chopping block as well.

Bruce Hayden said...

I do agree that Griswold is in some danger, but, I would suggest, not as much as you seem to believe.

But yes, Griswold was really the big jump, and, thus, the big target. If you believe that legalizing abortion is evil, then I would suggest that Griswold would be at the heart of that evil.

In other words, taking out Roe without taking out Griswold would, IMHO, be hard, but taking out Griswold first would be a lot easier, and then, without Griswold, Roe would seem to be vulnerable.

I do think that you overstate the possibilites though. Of the sitting Justices, the only fairly sure vote is Thomas. And, last I knew, the Chief Justice (whom I suspect you are including) was back in the hospital - with many suggesting that he is just hanging on until O'Conner's replacement is seated.

And probably as importantly, I don't read Roberts as being a revolutionary, which is how I see Thomas. I would add in that Roberts appears somewhat sympathetic to Gays, which would be another reason for him to vote against overturning Griswold.

vnjagvet said...

In one sense, I believe Geek's comment is correct. And that is the reasoning of both Griswold and Roe is on the block.

But I am not sure the result (in the sense of the precise holding)of either of these decisions is in jeopardy.

There was a most interesting and enlightening debate on yesterday's MTP between Doug Kmiec and Mario Cuomo on the Catholic view of birth control and abortion.

Interestingly, even Dean Kmiec did not seem to be advocating the roll back of the results of Roe or Griswold. He implied that even Scalia and Thomas did not seek to accomplish that result.

I think that says volumes about the current conservative approach to these landmark cases.

Remember even Thomas did not advocate wisdom of the criminalization of sodomy in Lawrence. He just wasn't willing to say Texas's decision to make it so was unconstitutional.

This is not where the so called "religious right" wants to go, but where most mainstream conservative jurists are.

Geek, Esq. said...

There are three votes to overturn Roe on the court right now--Scalia, Thomas, and Rehnquist. Everything I've seen would indicate that Roberts would be the fourth vote in that bloc.

Crucially, it really doesn't matter if Roberts thinks that anti-gay or anti-contraception laws are good ideas or bad ideas.

What counts is whether he thinks that individuals, through the structure of the Constitution and the 9th Amendment, retain a zone of personal freedom upon which the government can't tread without undergoing strict scrutiny.

The Borkian view on personal freedom, ironically yet fittingly shared with such luminary states as the Socialist Republic of Vietnam, is that we only have those freedoms and rights that the Constitution enumerates.

I fear that Judge Roberts adheres to this view.

Randomscrub said...

That's the point! The only rights a government has to recognize are those enumerated in its law. If you think the constitution is missing a few, you should be harassing your representatives for a constitutional amendment to add them.

I think you're making the mistake of conflating policy with law. It may be perfectly legal to assert that there is no right to privacy, but that says nothing of the advisability of a policy that would act in such a way.

Geek, Esq. said...

"That's the point! The only rights a government has to recognize are those enumerated in its law."

Argh. James Madison just rolled over in his grave.

The 14th Amendment, which applies to the states, protects life, liberty, and property against state intrusions.

Rightwing activists like Scalia and Thomas read "liberty" in the narrowest terms possible.

That's not something to be proud of.

keypusher said...

"Forget about Roe: Griswold is on the chopping block as well."

Griswold held that the state of Massachusetts could not ban a married couple from buying contraceptives. In order for Griswold to be on the chopping block, some state somewhere would have to pass a similar law. Don't hold your breath.

Geek, Esq. said...

"Griswold held that the state of Massachusetts could not ban a married couple from buying contraceptives. In order for Griswold to be on the chopping block, some state somewhere would have to pass a similar law. Don't hold your breath."

No, first they'll ban abortion and gay sex. It'll take them a while to get around to regulating the sex life of married heterosexuals.

Wave Maker said...

What abstration could be more susceptible to freewheeling interpretation more than "liberty and the pursuit of happiness?"

What liberty could be LESS freewheeling than "the right to be left alone?"

Keypusher: Griswold was in Connecticut. Massachusetts would never have done such a thing (heh).