The Supreme Court's Biggest Question
He had the right to remain silent. He knew that everything he said could and would be used against (and for) him. And yet, when Judge John G. Roberts Jr. was asked last week by Senator Arlen Specter, who heads the Senate Judiciary Committee, whether he believed the "right to privacy" existed in the Constitution, Mr. Roberts replied, "Senator, I do."
History suggests that if he had not, Judge Roberts would have sunk his chances to become the 17th chief justice of the United States just 20 minutes into his 20 hours of confirmation testimony. So many Americans - and so many senators - now accept that concept as an organizing principle of modern life and law that Robert H. Bork's confirmation as an associate justice collapsed 18 years ago this month in the face of his refusal to find such a right.
But the phrase appears nowhere in the Constitution itself: Privacy to do just what, and with whom, under what circumstances, with the benefit of what technology? There's the rub, as Judge Roberts reflected: He endorsed Griswold v. Connecticut, the 40-year-old Supreme Court decision that enshrined married couples' right to use contraception, but steered clear of embracing the more controversial rulings that have grown - or may yet grow - out of it involving abortion, gay sex and the right to die.
"Where we're talking about private heterosexual conduct, we're not in a debate," said Pauline Maier, a historian at the Massachusetts Institute of Technology who studies America's founding era. "But the controversy comes in those areas where people feel the private activity has an impact on the fabric of society as a whole, and that's where liberals and conservatives disagree. Fundamentalist Christians say homosexuality is awful and will damage society, and liberals say, 'If that's who they want to sleep with, let them.' "
The phrase "right to privacy" first appeared in an 1890 Harvard Law Review article by Louis D. Brandeis and his law partner, Samuel D. Warren. And as Judge Roberts noted, the notion began flowering 80 years ago in Supreme Court decisions that struck down laws that required children to attend only public schools and barred the teaching of foreign languages in elementary school, on the grounds that they violated the 14th Amendment's guarantee that no state shall "deprive any person of life, liberty or property without due process of law."
Such reasoning eventually led to Roe v. Wade, the 1973 decision that established a constitutional right to abortion, and for which "privacy" has become neutral-sounding shorthand. It was that precedent that propelled the line of questioning by Senator Specter, a moderate Republican and ardent supporter of abortion rights. But, as Judge Roberts also noted, concepts of privacy are at least as old as the Bill of Rights, and vitally important to libertarian conservatives, who resist government intrusions like the Clinton administration's raid on the Branch Davidian compound in Waco, Tex., or the Bush administration's Patriot Act after the Sept. 11, 2001, attacks.
That is one reason that Judge Roberts's conservative supporters, while perhaps not thrilled with some of his answers, did not rush to condemn him, either. Some of them view Griswold as the Warren Court's sloppy first step down the slippery slope that led to Roe. But they were quick to note approvingly (as Judge Roberts's critics did with concern) that Clarence Thomas had embraced the privacy right outlined in Griswold in his own confirmation hearings 14 years ago, while refusing to extend it just two years ago to cover consensual gay sex.
"I thought his answers on the privacy issue were pretty good, and were satisfying to me," said Leonard Leo, a lawyer who is on leave from a position at the conservative Federalist Society to help coordinate support for Judge Roberts. He noted that, in response to intensive questioning by Senator Charles E. Schumer, Democrat of New York, Judge Roberts had resisted endorsing a "general right of privacy," which Mr. Leo said was "very indicative of his skepticism about the way in which post-Griswold jurisprudence has developed."...
Read entire article at NYT
History suggests that if he had not, Judge Roberts would have sunk his chances to become the 17th chief justice of the United States just 20 minutes into his 20 hours of confirmation testimony. So many Americans - and so many senators - now accept that concept as an organizing principle of modern life and law that Robert H. Bork's confirmation as an associate justice collapsed 18 years ago this month in the face of his refusal to find such a right.
But the phrase appears nowhere in the Constitution itself: Privacy to do just what, and with whom, under what circumstances, with the benefit of what technology? There's the rub, as Judge Roberts reflected: He endorsed Griswold v. Connecticut, the 40-year-old Supreme Court decision that enshrined married couples' right to use contraception, but steered clear of embracing the more controversial rulings that have grown - or may yet grow - out of it involving abortion, gay sex and the right to die.
"Where we're talking about private heterosexual conduct, we're not in a debate," said Pauline Maier, a historian at the Massachusetts Institute of Technology who studies America's founding era. "But the controversy comes in those areas where people feel the private activity has an impact on the fabric of society as a whole, and that's where liberals and conservatives disagree. Fundamentalist Christians say homosexuality is awful and will damage society, and liberals say, 'If that's who they want to sleep with, let them.' "
The phrase "right to privacy" first appeared in an 1890 Harvard Law Review article by Louis D. Brandeis and his law partner, Samuel D. Warren. And as Judge Roberts noted, the notion began flowering 80 years ago in Supreme Court decisions that struck down laws that required children to attend only public schools and barred the teaching of foreign languages in elementary school, on the grounds that they violated the 14th Amendment's guarantee that no state shall "deprive any person of life, liberty or property without due process of law."
Such reasoning eventually led to Roe v. Wade, the 1973 decision that established a constitutional right to abortion, and for which "privacy" has become neutral-sounding shorthand. It was that precedent that propelled the line of questioning by Senator Specter, a moderate Republican and ardent supporter of abortion rights. But, as Judge Roberts also noted, concepts of privacy are at least as old as the Bill of Rights, and vitally important to libertarian conservatives, who resist government intrusions like the Clinton administration's raid on the Branch Davidian compound in Waco, Tex., or the Bush administration's Patriot Act after the Sept. 11, 2001, attacks.
That is one reason that Judge Roberts's conservative supporters, while perhaps not thrilled with some of his answers, did not rush to condemn him, either. Some of them view Griswold as the Warren Court's sloppy first step down the slippery slope that led to Roe. But they were quick to note approvingly (as Judge Roberts's critics did with concern) that Clarence Thomas had embraced the privacy right outlined in Griswold in his own confirmation hearings 14 years ago, while refusing to extend it just two years ago to cover consensual gay sex.
"I thought his answers on the privacy issue were pretty good, and were satisfying to me," said Leonard Leo, a lawyer who is on leave from a position at the conservative Federalist Society to help coordinate support for Judge Roberts. He noted that, in response to intensive questioning by Senator Charles E. Schumer, Democrat of New York, Judge Roberts had resisted endorsing a "general right of privacy," which Mr. Leo said was "very indicative of his skepticism about the way in which post-Griswold jurisprudence has developed."...