On September 6, 2005, the Senate Judiciary Committee will commence hearings on the nomination of John G. Roberts (currently a judge on the United States Court of Appeals for the District of Columbia Circuit) by President George W. Bush, to be an Associate Justice of the Supreme Court of the United States. We have written extensively on Judge Roberts, and anyone interested in more detail can search my posts.
The issue of Judge Roberts' views on the right to privacy is, in my opinion, the central question to Roberts' fitness for the Supreme Court:
Roberts' record strongly suggests that he does not believe that the Constitution guarantees or protects a right to privacy. In a 1981 memo that Roberts wrote as special assistant to Attorney General William French Smith, Roberts referred dismissively to the "so-called `right to privacy'" that formed the basis of the Supreme Court's Roe v. Wade decision.[73] And an article that Roberts apparently drafted for the attorney general derided the Court's earlier Griswold v. Connecticut ruling that privacy is a fundamental right protected by the Constitution.[74]
During his confirmation hearing for the appeals court, Roberts refused to say whether he believes there is a constitutional right to privacy,[75] even though more than two-thirds of Americans believe a Supreme Court nominee should be required to tell senators the answer to that question.[76] Roberts' refusal to answer questions about a right to privacy stands in stark contrast to the testimony of then-Supreme Court nominee Ruth Bader Ginsburg. When asked a specific question about a right to privacy, Ginsburg said:
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.[77]
Justice Ginsburg's clear and direct answer is particularly relevant given that Progress for America is citing a supposed "Ginsburg Precedent" to justify Roberts' refusal to answer questions on important constitutional issues.[78]
Roberts' apparent belief that the Constitution does not protect a right to privacy is extraordinarily troubling and would potentially have a very damaging impact on Americans' freedom to live their lives free of government intrusion into the most intimate decisions made by individuals and families, including decisions regarding medical treatment. Roberts' writing about Griswold indicates that he would see no constitutional barrier to laws prohibiting even married couples from using contraception. And his hostility to the notion of a constitutional right to privacy certainly suggests that he would not have supported the Court's 2003 decision in Lawrence v. Texas, which overturned state sodomy laws applying to consenting adults in private. Such laws had a devastating impact on peoples' lives because they were used to justify depriving them of jobs and even custody of their children.
Reviewing Roberts' record on privacy, a USA Today editorial questioned whether "few would want a nation in which there is no limit on government intrusion into personal lives" and noted, "Three current justices...have questioned whether a right to privacy exists. The court doesn't need a fourth, not least because the anti-privacy argument is a denial of history and basic American values."[79]
As the piece from People for the American Way makes clear, Judge Roberts appears to believe the Right to Privacy is mythical. He must express a view that the Right to Privacy is supported by the Constitution and not subject to reversal for his elevation to the Supreme Court to be acceptable, in my opinion. Should he fail to demonstrate a commitment to the Right to Privacy, it is my view that Judge Roberts should not only be opposed by Democrats, he should be filibustered.