Skip to main content

View Diary: Opening the Door (281 comments)

Comment Preferences

  •  Well (none)
    I am a lwayer and he dodged nothing. He stated expressly and unequivocally "The Constitution recognizes a right to privacy." He then detailed where there privacy rights emanate from. He omitted the 9th Amendment. But the 9th does not create substantive rights - it recognizes unemerated rights.

    Frankly, I have to question YOUR legal skills and whether you have ever read Griswold v. Connecticut because Roberts' answer is practically a cribbing of Griswold v. Connecticut.

    The SCOTUS is Extraordinary.

    by Armando on Tue Sep 13, 2005 at 07:51:26 AM PDT

    [ Parent ]

    •  Read the transcript (none)
      he specifically enumerated what that "right to privacy" constituted. And as you point out, he did not extend it to the broad right to privacy we progressives believe in by omitting the 9th. We may be saying the same thing. But if we are you have to know that his recognition of the right to "privacy" in the enumerated amendments is nothing new even for a conservative.

      Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

      by BrianVA on Tue Sep 13, 2005 at 07:54:12 AM PDT

      [ Parent ]

      •  Then you should read Griswold (none)
        The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

        Roberts basically restated this paragraph. The last sentence must be pursued and can be pursued. And frankly, the language is clear and unequivocal.

        Due respect, you have made a mistake here.

        The SCOTUS is Extraordinary.

        by Armando on Tue Sep 13, 2005 at 07:56:21 AM PDT

        [ Parent ]

        •  You're right (none)
          if he had recited this paragraph, or even paraphrased it, that would have been news. If he had mentioned zones of privacy or even said "ninth" it would have been significant. But he didn't.

          Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

          by BrianVA on Tue Sep 13, 2005 at 07:58:33 AM PDT

          [ Parent ]

          •  I am sorry (none)
            But you are missing the point. Do you think he will deny the 9th?

            And did you not hear him say that right to privacy has been recognized by the SCOTUS for 80 years?

            He was unequivocal.

            I think you are now grasping at straws.

            Which leads me to this question, do YOU believe in the right to privacy as recognized in Griswold?

            The SCOTUS is Extraordinary.

            by Armando on Tue Sep 13, 2005 at 08:01:14 AM PDT

            [ Parent ]

            •  Yes McCarthy (none)
              what the hell are you talking about? Of course I do. You doubt my stripes b/c we don't agree on parsing his words? Come off it.

              Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

              by BrianVA on Tue Sep 13, 2005 at 08:05:29 AM PDT

              [ Parent ]

              •  McCarthy? (none)
                I asked you a direct question. I accused you of nothing.

                You have 13 comments, including those in this thread, for history.

                I have no idea what your views are. And your comments gave me no evidence of what they were.

                See, I base my judgments on evidence. You had no evidence of your views.

                The SCOTUS is Extraordinary.

                by Armando on Tue Sep 13, 2005 at 08:25:30 AM PDT

                [ Parent ]

            •  sorry to intrude in a lawyers' argument (none)
              but I think the issue is whether he believes that "the right to privacy" is protected THROUGH the 9th, i.e. whether it's a broad fundamental right inherent in the Constitution and underlying the specific enumerated rights rather than a narrow general term that describes only what's been explicitly mentioned in these enumerated rights. As you've suggested, I think this point is what needs to be hammered on now that the door has been opened.

              remember your humanity, and forget the rest

              by human on Tue Sep 13, 2005 at 09:53:28 AM PDT

              [ Parent ]

          •  I'm not a lawyer, but the fact that he (4.00)
            outlined the others, but specifically not the ninth seemed particularly odd to me, too.

            By omission on purpose.  The unenumerated rights is the area where he can fudge.

            Our... constitutional heritage rebels at the thought of giving government the power to control men's minds. Thurgood Marshall

            by bronte17 on Tue Sep 13, 2005 at 08:17:54 AM PDT

            [ Parent ]

        •  I mean think about it (none)
          Roberts has spent hundreds of hours preparing for these hearings. You don't think he considered how he would answer the question: "Do you believe there is a right to privacy in the constitution?" The way to answer that question and be honest is to say yeah and then enumerate the 1st, 3rd, and 4th, and call that privacy. What was he going to do otherwise? Say   "No". Not likely.

          Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

          by BrianVA on Tue Sep 13, 2005 at 08:03:36 AM PDT

          [ Parent ]

          •  Precisely (none)
            Think about it. He had hundreds of hours to formulate a weaselly answer and didn't give it. He has opened the door.

            We get to pursue the subject at length.

            Roberts is simply not all that you folks suggest I terms of clever lawyering, if his intent was to avoid the subject.
             

            The SCOTUS is Extraordinary.

            by Armando on Tue Sep 13, 2005 at 08:06:41 AM PDT

            [ Parent ]

            •  It sounds (none)
              like you are fairly impressed with Roberts, at this point.  I haven't been following the hearings (I don't have cable) . . . is it possible that Roberts is actually a good guy?

              "In the beginning the universe was created. This has been widely criticized and generally regarded as a bad move." -- Douglas Adams

              by LithiumCola on Tue Sep 13, 2005 at 08:09:37 AM PDT

              [ Parent ]

              •  No I am not (none)
                I actually am less impressed with his cleverness at this time.

                I am merely reacting to what he stated in his testimony.

                He said what he said. Now we get to pursue it in depth.

                The real point of my post. Hence, "Opening the Door."

                The SCOTUS is Extraordinary.

                by Armando on Tue Sep 13, 2005 at 08:22:42 AM PDT

                [ Parent ]

              •  Yes (none)
                As much as some here would deny it, I suspect he will end up being a moderate conservative swing vote with more intelligence than O'Connor.
            •  Armado, I think it is a well conceived strategy . (none)
              To make Roberts appear more benign than he actually is. If the MSM, portrays him as a moderate or a mainstream conservative in the mold of O'Conner (which I sincerely doubt he is), then this could give Bush cover to nominate a true hate monger like Janice Brown for the next slot.

              Armando, this guy is a slick as they come, like Mayor Nagin.

              http://www.epluribusmedia.org/donate.htm

              by nyceve on Tue Sep 13, 2005 at 08:17:50 AM PDT

              [ Parent ]

            •  Compare his response to Ruth Bader Ginsburg's (none)
              There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone. The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life's course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make basic decisions about one's life's course.

              Close enough for me.

        •  did he use the word "emanate"? (none)
          That would be a big deal indeed, as the conservatives have always made fun of the notion of privacy (or any other right) emanating from the Constitutional words.

          If he merely said - yes there is a right to privacy in the 4th, 5th, 3d amendments - that would be nice but unremarkable.  But if he said "emanate" this would be an express signal that he claims to buy into the whole Griswold/Roe theoretical framework

          •  Exactly my point (none)
            but you cut to the matter much more skillfully than me.

            Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

            by BrianVA on Tue Sep 13, 2005 at 09:36:01 AM PDT

            [ Parent ]

        •  What I would looooove to see... (none)
          ...is somebody digging up some of the more odious opinions of Scalia, Thomas, or Rhenquist (RIP) and having Roberts either defend or repudiate them.  THAT, my friends, would be Must See TV.

          What did we do to deserve George W. Bush?

          by republicans are idiots on Tue Sep 13, 2005 at 09:27:26 AM PDT

          [ Parent ]

    •  aoeu (none)
      If Roberts is parroting Griswold he could think that while there is a right to privacy from Griswold, abortion of fetuses is not a private matter.

      box turtle hatchlings
      are still proficient with teeth
      watch out John Roberts

      by TealVeal on Tue Sep 13, 2005 at 07:56:09 AM PDT

      [ Parent ]

      •  I do not agree (none)
        Take the opinion of Justice Potter Stewart, voting with te majority in Roe after dissenting in Griswold:

           Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. 2 So it was clear [410 U.S. 113, 168] to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. 3 As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

                  "In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572 . The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238 -239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390, 399 -400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629 -630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96 ; Aptheker v. Secretary of State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v. Sharpe, 347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41 . [410 U.S. 113, 169]

            As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speakingincludes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).

            Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453 , we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170] as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).

        Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

        The SCOTUS is Extraordinary.

        by Armando on Tue Sep 13, 2005 at 07:58:59 AM PDT

        [ Parent ]

        •  But (none)
          that passage doesn't mean that Roberts cannot accept that a right to privacy exists, even as to abortion, and yet still hold that the state's interest in protecting life (even in the case of an unborn fetus) supercedes that right or at least allows the state to restrictr its exercise.

          Roberts might just balance the interests balanced by the Roe majority differently, using the same analytical frame work.

          In other words, while I find his apparent acceptance of Griswold encouraging, it does not signify to me that abortion rights are safe if he can be taken at his word.

          •  Fetus rights? (none)
            That would be new and unprecedented.

            The SCOTUS is Extraordinary.

            by Armando on Tue Sep 13, 2005 at 08:37:12 AM PDT

            [ Parent ]

            •  Roe itself allows prohibition in the 3rd trimester (none)
            •  I don't think fetus rights (none)
              are directly mentioned in the cases, but I believe the standard is the balancing test of the State's rights in the unborn, as discussed in Casey.

              The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty.

              although it's getting late, you still have plenty of time

              by maracuja on Tue Sep 13, 2005 at 11:07:05 AM PDT

              [ Parent ]

              •  Correct (none)
                The notion that the state has an interest in protection of potential life is hardly unprecedented.  It is a theme than runs through the jurisprudence in this area.  Armando is correct that an express recognition of fetal rights would be unprecedented, but the practical effect of recognizing a state interest in the area amounts to the same thing if taken too far.
          •  Word (none)
            What I think is missed a lot in all this is that its not Roe that is under threat directly, its that it is under threat indirectly.  The wittling away at Roe, via Parental rights to know, requirements for judicial review  - ie teens must request permission from the court, first, second, third trimester restrictions, limits on drugs, etc....all these things are the real threat.  

            I learned this listening to someone from one of the right-to-choice groups talking about the court and Roe etc.  Their feeling is that Roe is too much of a political hot button to be directly over-turned...so it is secure.  But there is much damage being done to rights at the state level and with the SCOTUS support.  This where I want to know where Roberts stands.  When it comes down to it, you really need to know the candidate's ideology.  If they dont have one, they are lieing....even not having one would mean you still have one by default even if that means indifference.  The fact that this guy worked hard for Regan, Bush, and clerked under Rhenquist is all a big tip off.  He didn't have to do those jobs just to pay his rent.  So I dont buy this BS about being forthcoming today - its all hoo-ha.  Look at his carrer record and the things he has spent his time on, thats what he cares about.  Anyone can say anything on a given afternoon.

            onnyturf.com - Collective Political and Community Journalism by NYers for NYers

            by atomicBirdsong on Tue Sep 13, 2005 at 09:23:42 AM PDT

            [ Parent ]

        •  Substantive due process?? (none)
          Potter Stewart reconciled his dissent from Griswald and his concurrence in Roe based on a substantive due process argument.  See eg http://www.yalelawjournal.org/pdf/112-5/StevensFINAL.pdf
          As you may well know, the concept of Substantive Due Process is no longer the coin of the realm in the Supreme Court.  While it was used as "filler" in the past when the Supremes wanted to achieve a particular result but couldn't find the textual basis for the result, it has fallen on hard times of late.  I wouldn't cite to these quotes expecting any of the current Supremes to give you a high five.  Stare Decisis is the way to go, not substantive due process.
    •  Stare decisis (none)
      I suspect that a question about his views on stare decisis will be more revealing than this vague question about the right to privacy. Personally, I think that Griswold was a badly reasoned decision that came to the right result and should be upheld as a matter of stare decisis ... and Roberts may too even if he would not have agreed with the original decision.
    •  I have to disagree with Armando on this (none)
      Armando says

      He stated expressly and unequivocally "The Constitution recognizes a right to privacy." but then he specifically omitted mentioning the 9th Amendment.  

      Armando says that's ok because the ninth doesn't create rights it just recognizes unenumerated rights. But note that in Roberts' answer he wasn't talking about where the constitution creates privacy rights but where it recognizes privacy rights.  Words matter, especially when chosen with as much care as in this matter.

      Consider - he had to the chance to mention the Ninth and chose not to. That's significant.  A nod to Griswold is not an embrace of Griswold.  You should be careful not to fall for a feint.

      Let me put it another way.  If Roberts believes that the Constitution recognizes the right to privacy specified in certain amendments to the Constitution but does not believe in a generic unenumerated right to privacy under the Ninth - how would his answer have been any different?

      If you want something other than the obvious to happen, you've got to do something other than the obvious...

      by trillian on Tue Sep 13, 2005 at 09:10:01 AM PDT

      [ Parent ]

    •  You hear what you want...not what Roberts said (none)
      Recognizing a right of privacy founded in, for example, the 4th amendment is hardly earth shattering...it opens the door to nothing that hasn't been settled law since the days of Blackstone.  I think that BrianVa has it exactly right-Roberts recognized the obvious "privacy" protections that are enumerated in the Constitution, and avoided any express recognition of the "penumbras" of a right to an abortion.  He hasn't opened any doors to a free-weeling discussion of the extent and scope of unenumerated privacy rights-hence his failure to cite to the 9th Amendment.  He has given the Democrats a sound bite to feel good about, while assiduously avoiding the "A" word.  Noteable, Ginsburg took a similar approach during her confirmation hearing.  She never expressly stated she supported a constitutional right to an abortion.
      •  Yeah... (none)
        I agree - I think Armando's hearing what he wants to hear - I think it's what Roberts WANTS the "left" to hear as well - and it's a clever side-step.  

        RBG was much more explicit in her discussion of autonomy as a part of privacy doctrine.  Roberts wasn't.  And he said nothing which would prevent him (he of the Imperial Presidency) from finding a compelling state interest which supercedes personal autonomy.  The view of privacy he suggests is of a cloth with the interpretation which has allowed, except for Kyllo, the recent trend of gutting the 4th.  A reading which finds that dog-sniffs aren't "searches" within the meaning of the 4th.  

        Roberts has also armed the Republican committee members and Vast-Right-Wing-Noise-Machine with a "I recognize and support a right to privacy" that completely undercuts the existing personal autonomy meme.  The average half-wit will most certainly not grok the distinction - even those of us who pay very close attention are in disagreement.  

        Finally, all the previous moderates-in-wolves-clothing appointees (Warren and Black leap to mind) had significant life experience outside the courtroom.  Roberts is a true Bushie in this respect: he's only lived inside the rarified Whitehouse atmosphere since leaving the Ivory Tower.  This guy will not overturn Roe outright, but he's gunning for it, and he knows how death-by-a-thousand-cuts works.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site