In Dicta

Monday, August 08, 2005

Daily dose of Judge Roberts

"Judge John G. Roberts Jr., President Bush's nominee for the Supreme Court, has written quite a bit in opposition to a constitutional right to privacy that has served as the basis for Supreme Court decisions protecting abortion and gay rights. But his writings, though distinctive and consistent, were always on behalf of superiors and clients and might not reflect his own views, then or now.

The positions Judge Roberts sketched out do echo those of Robert H. Bork, whose nomination for the court was defeated in 1987.

"Robert Bork was blocked in large part because he said in his writings that there was no constitutional right to privacy," said Erwin Chemerinsky, a law professor at Duke.

Judge Roberts could face serious trouble, liberal and conservative law professors agreed, if he were to embrace similar views at his confirmation hearings in the Senate next month.

In his two years on the federal appeals court in Washington, Judge Roberts has addressed significant privacy issues only in his Fourth Amendment decisions, sustaining police searches and other actions in the nine cases in which the issue arose. But there is little overlap between Fourth Amendment doctrine and the sort of constitutional privacy rights involved in cases concerning broader social issues.

Judge Roberts addressed that second sort of constitutional right to privacy, as set forth in a 1965 court ruling, as a lawyer in the Justice Department in 1981, just after finishing his clerkship with Justice William H. Rehnquist, now the chief justice.

In a draft article for Attorney General William French Smith that year, Judge Roberts wrote that the Supreme Court should not interpret the Constitution to give rise to new rights.

"All of us, for example," he wrote, "may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.' "

The quotation was a telling one. Justice Hugo L. Black's dissent was in Griswold v. Connecticut, a 1965 case in which the Supreme Court struck down a Connecticut law that made the use of contraceptives a crime. It was, Justice Potter Stewart wrote in his own dissent, "an uncommonly silly law." But, the dissenters said, the Constitution did not give courts the power to strike down even silly laws unless they were in direct conflict with a constitutional command."

From The New York Times.

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