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Roberts and Privacy
Swimming with partisan liberal sharks…
[Ryan Walsh] 9/26/05

Chris Matthews, host of Hardball, called September 13 “a good day for those who support abortion rights.”  A New York Times headline concluded similarly, “Roberts, Pressed on Abortion, Cites Respect for Settled Law.”  The Washington Post, USA Today, and Bloomberg.com all agreed.  It seems Roberts turned out to be a pro-Roe judicial activist in originalist clothing.  Or did he?

The question centers on Roberts’s response to Senator Joe Biden’s question on whether Roberts believes that a right to privacy can be found in the 14th Amendment: “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.”

Does that mean Roberts finds the particular “right to privacy” cited in Griswold v. Connecticut, Roe v. Wade, and Casey v. Planned Parenthood to have constitutional validity?  Not likely.  Instead, he finds a general privacy interest in the language of the 1st, 3rd, and 4th Amendments.  As Ron Cass, former Dean of the Boston University Law School, expains, “…[These Amendments] secure private worship, private thought, and private property against particular government intrusions—and also are protected as part of the liberty safeguarded by the due process clause.” 

It isn’t hard to imagine all of the Court, as Roberts suggested, subscribing to this school of thought, yet not all of the justices agree on the extent of such privacy interests.  The jurisprudential differences between, for example, a Ginsburg and a Scalia are not only the results of different interpretations of the Constitutional text, but also different approaches to it. 

Nearly all Americans believe there is some constitutional predisposition to privacy, yet most of them define these privacy interests in the Roberts mold.  According to a Winston Group poll, 66 percent of those asked believed that the right to privacy came closer to mean “The right to be free from government intrusion—including private phone calls, private mail, private medical and financial information, and the right to raise your children as you see fit.”  A mere 26 percent thought it to denote “The right to make decisions free from government interference, such as the right to choose abortion.”

Even if Roberts disagreed with the majority’s reasoning in Roe and Casey and disputed the right to abortion-on-demand (which falls under the right to privacy), would he still vote to uphold precedent?  To the press, Roberts’s comment that Roe and Casey were “entitled to respect” means he would.  But to reach that conclusion requires a leap of faith. 

Roberts subscribes steadfastlyto the judicial doctrine of stare decisis.  According to Roberts’ reasoning, the history of the Supreme Court encompasses many wrongly decided cases.  Some, such as the segregationist Plessy v. Ferguson decision, grew weaker with time, while others, such as Griswold v. Conneticut, grew stronger.  Stare decisis says to leave the stronger, more widely accepted decisions alone, but permits the Court to strike down those decisions which, due to their enduring unpopularity, have not been “woven into the American fabric,” in the words of one blogger. 

So, the question is, “Where does Roe fall?”  In one sense, with its doctrines rooted in Griswold and reaffirmed in Casey, Roe seems untouchable.  In another sense, Roe sits on decidedly shaky Constitutional grounds, inviting critics from both sides of the legal spectrum and galvanizing over half of the American people’s angry disapproval.

At the end of the day, what did Roberts’s hearings reveal about his stance on Roe and its specific application of the right to privacy?  To the careful observer, very little.  But to the presumptuous press, the hearings proved that Roberts had officially abandoned his animus toward what he had once dubbed the “so-called right to privacy.”  Now, they said, Roberts wholeheartedly embraces the reasoning, doctrines, and precedent of Roe.  “He’s one of us,” the headlines implied.

Roberts’s performance was masterful, simply masterful. tRO

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