Just as a note: John Roberts did say some things that might give some judicial conservatives pause:
- He denied having a judicial philosophy:
ROBERTS: Well, I have said I do not have an overarching judicial philosophy that I bring to every case. And I think that's true.
- He endorsed substantive due process:
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.
- He endorsed Griswold:
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.
- He also seemed to endorse the Eisenstadt case:
FEINSTEIN: Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
Do you think that right of privacy that you're talking about there extends to single people, as well as married people?
ROBERTS: The courts held that in the Eisenstadt case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstadt.
- He even went out of his way to suggest that the right of privacy was not merely "implied":
FEINSTEIN: In response to the chairman's question this morning about the right to privacy, you answered that you believed that there is an implied right to privacy in the Constitution, that it's been there for some 80 years, and that a number of provisions in the Constitution support this right. And you enumerated them this morning.
Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?
ROBERTS: Well, Senator, first of all, I don't necessarily regard it as an implied right. It is the part of the liberty that is protected under the due process clause. That liberty is enumerated . . .