Chief Justice nominee Roberts on Griswold & Privacy

People For the American Way

Press Release Wednesday 14 September 2005

Roberts' 'So-Called' Commitment to Privacy

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After yesterday’s bobbing and weaving from Chief Justice nominee John Roberts, you might think Roberts told senators that the Constitution protects rights Americans have come to expect -- reproductive choice for women, a right to privacy in our own bedrooms, and the right to make intensely personal medical decisions, such as refusing unwanted medical treatment, without government interference.

You’d be wrong. While Roberts said he believed in a right to privacy under the Constitution, he immediately added that every member of the Supreme Court does, "to some extent or another."

By saying that he believes in a constitutional right to privacy the way every member of the Court does, Roberts is essentially saying that he would provide virtually no real protection for the right to privacy. Every member of the Court, of course, includes Justices Antonin Scalia and Clarence Thomas. According to their view, any right to privacy does not encompass a woman’s right to reproductive choice, and both have argued that Roe v. Wade should be overruled. According to their view, any right to privacy apparently does not include the right of consenting adults to be free from criminal prosecution for what they do in the privacy of their own bedrooms, as reflected in their dissents in Lawrence v. Texas. And according to Scalia’s view, the right of privacy does not give even a fully competent adult the right to refuse unwanted medical treatment, as reflected in Scalia's opinion in Cruzan v. Missouri Dept. of Health.

To what extent does Roberts believe in a right to privacy? Beyond the right of married couples to use contraception, recognized in the Griswold decision, Roberts refused to divulge whether he believed a constitutional right to privacy included reproductive choice or end-of-life decisions. Right-wing leaders are apparently comfortable concluding that Roberts "provide[d a] basis for reversing Roe v. Wade," as one LifeNews headline put it. Pat Robertson’s Christian Broadcasting Network reported that Roberts "may vote [to] overturn Roe v. Wade," and that "[p]ro-life groups were happy to hear" his answers on when it is appropriate to overturn settled law. According to a posting on confirmthem.com, a prominent anti-Roe attorney applauded Roberts’ evasion, saying "Roberts’ answer was carefully framed to provide a basis for revisiting and overturning Roe in the future."

"Judge Roberts’ answer is too clever by half," said People For the American Way President Ralph G. Neas. "With one breath, he gives false reassurance to Americans who are concerned that a Roberts Court would endanger privacy rights. With the next breath, he signals the far right wing that he could well join Scalia and Thomas in trying to take those rights away."

Neas said Roberts’s comments are "eerily similar" to the words Clarence Thomas used 14 years ago to respond to the similar questions. A transcript of Roberts’ answers on Tuesday and Thomas’s answers from 1991 are below.

BIDEN/ROBERTS

SEN. JOE BIDEN (D-DE): Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think? Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?

JUDGE ROBERTS: I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.

Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition.

If they agree with Bowling against Sharpe, as I'm sure all of them do, they are subscribing to that proposition to some extent or another.

KOHL/ROBERTS

KOHL: Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception. Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?

ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

SIMON/THOMAS

SEN. PAUL SIMON [former Democratic of Illinois, now deceased]: do you consider the right of privacy a fundamental right?

JUDGE THOMAS. Senator, to my knowledge, the Supreme Court, no majority has used the ninth amendment to establish as the basis for a right. Of course, it was used by Justice Goldberg and by Justice Douglas in Griswold. With respect to the approach that I indicated that I thought was the better approach, it was Justice Harlan's approach. But with that said, my bottom line was that I felt that there was a right to privacy in the Constitution, and that the marital right to privacy, of course, is at the core of that, and that the marital right to privacy in my view and certainly the view of the Court is that it is a fundamental right.

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