Thursday, September 22, 2005

Roberts

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 . . .

4 Comments:

Blogger David Sucher said...

Stuart,
Would you be very offended if I offer a suggestion?

12:53 AM  
Blogger Stuart Buck said...

Go right ahead.

8:43 AM  
Blogger Rooster said...

Stuart,

Regarding the "overarching" judicial philosophy, then-Judge Scalia had this exchange with Senator Biden in his confimation hearing:

"Senator BIDEN. Let me back up. Why do you not tell us how you view the interpretation of the Constitution? Do you view it as a living constitution, to use that, quote, term of art? Do you view it as having to look to the original meaning, the original intent? Who are you, Judge Scalia?

Judge SCALIA. That is a good question, Senator. I am embarrassed to say this. I am 50 years old, grown up, and everything. *I cannot say that I have a fully framed omnibus view of the Constitution.*"

I don't think Roberts indicated anything different.

Also, Roberts seemed very reluctant to admit to an amorphous "privacy" right; he seemed to specifically ground it in the actual provisions of the Bill of Rights, whether it be 1st, 4th, or 14th Amendments.

Compare with Judge Souter, who told the committee, unequivocally, that he believed in an "unenumerated" right to privacy in the 14th Amendment. Boy, looking back, that was a rather *pregnant* way of phrasing things!

My $0.02.

-Brian Mattson

8:36 PM  
Blogger Thomas said...

As I understand it, Justice Thomas used the "no quarrel with" formulation at his confirmation hearings. Perhaps the phrase means something like "animus toward"? In which case, who would have a quarrel?

On substantive due process, recall Scalia's Michael H opinion: "It is an established part of our constitutional jurisprudence that the term "liberty" in the Due Process Clause extends beyond freedom from physical restraint."

12:13 AM  

Post a Comment

Subscribe to Post Comments [Atom]

<< Home