Not a day has gone by since Roberts’ nomination and I don’t receive some “take action” or “alert” email from NARAL Pro-Choice America, Planned Parenthood Federation of America, the National Organization for Women, and Save Our Courts. The emails always have some recently discovered memo, letter, or comment made by Roberts himself concerning his opposing position on the Roe v. Wade and Conn. v. Griswold rulings, along with other civil rights and liberties issues. As if his close ties with violent anti-choice groups such as Operation Rescue and him even arguing on their behalf in cases such as Bray v. Alexandria Women’s Health Clinic, weren’t unsettling and disturbing enough. But now, some more memos (oh joy) citing that Roberts doesn’t really view the right to privacy to be fundamental for American citizens. (via NARAL Pro-Choice America)
Today’s Washington Post reports on a memo regarding the landmark 1965 Supreme Court ruling that legalized the use of birth control by married couples under a right to privacy. According to the records, Roberts’ memo “to the attorney general on Dec. 11, 1981, summarized a lecture six years earlier by then-Solicitor General Erwin N. Griswold at Washington and Lee University, which touched on the same theme. Griswold’s lecture, Roberts said, devotes a section to the so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade.” [WashingtonPost, 8/3/2005]
And from that Washington Post article….
[…]Separately, new documents released by the National Archives from Roberts’s tenure as a senior adviser to the attorney general during the Reagan administration make clear that he was deeply skeptical of the court’s recognition of a citizen’s fundamental “right to privacy” — the legal concept that underpinned its historic 1973 decision upholding a right to abortion.[…]
The new documents disclosed by the archive that reflect Roberts’ skeptical views regarding a “fundamental” right to privacy include a lengthy article on judicial restraint that he apparently drafted for publication in a journal of the American Bar Association under the name of then-Attorney General William French Smith, his boss.
The article approvingly quoted from a dissenting opinion by Justice Hugo Black in a 1965 court decision, in which the majority held that a Connecticut law forbidding the use of contraceptives was unconstitutional. Black’s opinion, as cited in the draft, complained that the court had used “a loose, flexible, uncontrolled standard for holding laws unconstitutional.” The draft article said that “the broad range of rights which are now alleged to be ‘fundamental’ by litigants, with only the most tenuous connection the to Constitution, bears ample witness to the dangers of this doctrine.”[…]
[…]A second memo, sent by Roberts to the attorney general on Dec. 11, 1981, summarized a lecture six years earlier by then- Solicitor General Erwin N. Griswold at Washington and Lee University, which touched on the same theme. Griswold’s lecture, Roberts said, “devotes a section to the so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade.”
The words “so-called” do not appear in Griswold’s lecture. But Roberts drafted a letter to Griswold, signed by Smith, saying he was cheered that Griswold made “many of the same points” that the administration had about these matters.[…]
Now with Nancy Keenan’s, President of NARAL Pro-Choice America, own statement regarding Roberts’ view on the right to privacy, which I will agree is “extremely troubling.”
“That John Roberts, President Bush’s nominee to the highest court in the nation, should refer disparagingly to our ‘so-called right to privacy’ is extremely troubling. The right to privacy is central to our American ideals of liberty and personal freedom, and it’s something most Americans cherish,”….”The more we learn about John Roberts’ judicial philosophy, the clearer it becomes that he is not the right choice for a lifetime appointment to the Supreme Court. With each new piece of information the White House’s artfully constructed façade falls farther away, and the real John Roberts comes into clearer view ““ a career activist who would bring a clear ideological agenda to the Supreme Court.[…]”
Oh the scary, scary times in which we live. These may have been past comments and letters made by Roberts long before he was even a judge, however, who’s to say that someone’s history doesn’t repeat itself, while the person’s identity has taken on a whole new incarnation….Supreme Court Justice Roberts.
Roberts is 50. With luck and advances in medicine he could serve 50 years as a justice. Possibly more. Scary thought.
Same with any other nominee.
That “Lifetime Tenure” thing is odd. I understand the reasons for it, originally, but I think it’s time to get rid of it. Before 1970, the average tenure of Justices was about 16 years. Some more, some less. Since that time, the average has gone up to almost 25 years. Back in the 1700 and 1800’s, Average life span was about 42-45 years. “Lifetime tenure” didn’t have the same ramifications then as it does now. I don’t really think when the founding fathers came up with the idea they were thinking that folks would eventually be serving a literal “lifetime” on the bench. I think regardless of who gets picked that some of the focus needs to shift from who is getting picked to seeing about limiting the terms of who gets picked.
No matter how bad a president is or how much we might not like him we can console ourselves with the fact that his term of service is limited. Seems to me that should be true for any justices a president picks as well. We only have to suffer for 8 years with an idiot president. Why should we have to suffer for a lifetime with some possible idiot he might appoint?
I am inclined to agree with mousehounde. I think term limits for Supreme Court justices would make a lot of sense. For one thing, it would increase the predictability when it comes to Presidential elections – we’d know exactly how many justices (at minimum) a president was going to get to appoint.
I suggest 16 years as a good term. Long enough to get some experience and have an impact, short enough to keep the fresh blood moving in.
If there is a limited term for a SCJ, can a president re-nominate an outgoing justice to another term?
Jake, that would be defeating the purpose for term limits. The longer one stays in power, generally, the more powerful they become. Term limits are a way to keep any one person from becoming too powerful. In fact, I think every elected or appointed government position should be subject to term limits.
I’d be inclined to say yes.
Robert, may I ask why? If a person can be re-appointed or re-elected despite term limits, it would seem to mean that the term limits wouldn’t really exist or matter.
If the periods were spaced out so that every presidential term there was a chance to replace (or reappoint) two justices, it would be meaningful. It would always be possible that a right-wing justice’s term would end during a Democrat President’s term, leading to that right-winger being replaced by a moderate. Or vice-versa.
Of course, luck still enters into it. Based on when they were first appointed, even if they had been doing 16-year-terms, Clinton wouldn’t have been able to replace any of the three most hard-right Justices – none of them would have come up for reappointment during 1992-2000.
In the end, with or without term limits, the courts are responsive to the whims of elections – albeit slowly. If the Democrats didn’t lose so many elections, we wouldn’t feel so unhappy about the Supreme Court right now.
Robert, may I ask why? If a person can be re-appointed or re-elected despite term limits, it would seem to mean that the term limits wouldn’t really exist or matter.
Executive prerogative. One of the fundamental assumptions is that the President gets to nominate whom s/he wants for the job. Term limits should be an administrative limitation on the justices, not a functional limitation on Presidential authority.
If you prefer, we could make the renomination only valid through the end of the reappointing President’s term. That would make it very unlikely that a President would blow his/her pick unless they had some compelling reason to really want a particular jurist to stick around.
I think it very unlikely that most Presidents would refrain from exercising their own individual power in favor of merely reconfirming the choice of a predecessor.
And if Democrats hadn’t slavishly waved through so many conservatives to the Court, perhaps they would have won more elections… :/
I haven’t read the briefs cited above (and, not to be snide, but my guess is that most of the people arguing about them haven’t read them either), but it strikes me from the passages cited here in in the Post that the conclusion “John Roberts doesn’t believe in privacy” is really a stretch.
First of all, when lawyers are admitted to the bar,they take an oath swearing to serve their clients’ interests and wishes, whether they agree with them or not. Roberts worked for the Reagan administration. Could he have taken a different job? Of course. But so long as he worked for the administration, his job was to write documents and make arguments supporting the opinions held by the people for whom he worked, within the bounds of the law.
Secondly, however, I don’t see anything in the quoted documents to suggest that Roberts doesn’t believe in privacy, or that he would overturn existing precedent regarding abortion and birth control. What the quoted passages actually say is that federal guarantees of those rights were grounded in a right that does not appear explicitly in the text of the Constitution, which is true. I wish there were something in the Bill of Rights saying something like, “Congress shall make no law infringing on the rights of the people to the private enjoyment of their property, family, or personal lives.” I think there’s a decent argument to be made that the Fourth Amendment ought to be interpreted to protect more privacy than it has historically been ruled to cover. However, that’s not how Roe, Griswold, etc. were argued, and I think it’s perfectly reasonable to argue that having courts determinewhat’s in the constitution based on what they wish the constitution to protect is a dangerous precedent.
Even if the briefs were Roberts’ own opinion (which there’s no real way to know whether they are. A few months ago, I wrote a paper for my employer claiming that the U.S. government should send millions of dollars to foreign NGOs, a position I would never personally support, because that was what I was assigned to do.), the briefs don’t argue “there’s no such thing as a privacy right” or “there should be few/no restrictions on government’s right to invade people’s privacy.” The briefs argue that it would be better if courts eschewed readings of the constitution that stretch the meaning of the text to cover whatever opinion they feel like covering at the time. Would I feel more comfortable if Roberts had included a passage reminding readers that the Constition is a document of enumerated powers and thus Congress can’t regulate abortion or birth control unless the text explicitly says they can? Would I be thrilled if Roberts came out publicly in support of a broad interpretation of the Ninth Amendment? Absolutely. But the fact that Roberts believes judges should limit themselves to interpreting text rather than making new law doesn’t mean that he would revoke any rights the constitution has been previously stretched to cover.
Rick Santorum was on Morning Addition today on NPR speaking about the Roberts nomination and process. It is available online at, npr.org. Blessings.
Yeah, I heard Satorum on NPR this morning … I don’t know about you guys, but when the local annoucer came on after Santorum’s “OH, I AM SO PICKED ON! and then launch into attacking virtually every rights-giving court decision in the last 30 years” spiel, the announcer apologised for a moment, as he he said he had to stop choking, with a slight chuckle in his voice …
In mean, of course, he must have been having snack for breakfast … of course … *evil grin*
it’s true that as an employee of the reagan administration, roberts probably had to write some things that he might disagree with. however, when you add up all the factors– nominated by bush; endorsed by santorum; has a wife who is part of operation rescue; has repeatedly ruled for things like allowing prayers at public school graduation ceremonies; opposed things like a congressional effort to help minorities argue under the voting rights act; argued that enviro groups couldn’t sue mining operators on public lands; argued for the abortion gag rule, etc etc– it sure seems like he either doesn’t stand on his convictions, or he’s very conservative. in his position, i could write opinions i disagreed with a few times, but i think after awhile i’d feel like i was selling my soul, and supporting something i was morally against would make it very difficult to continue working in such a position in good conscience. i don’t admire lawyers who knowingly represent rapists/murderers/abusers, either. i think it’s disingenuous for republicans to argue that his short time on the bench gives us nothing to go by. why are they so gleeful about the prospect of him as a sc justice, then?
i read the histories of other potential candidates, and even when there were rulings i disagreed with, i could sometimes see that the person consistently ruled the same way, despite the politics of the case. sometimes i liked the conclusions, sometimes i didn’t, but i could see why they ruled the ways they did. i don’t believe roberts is one of those people. he’s not just consistently textual; he’s consistently anti-minority, anti-abortion, anti-environmental.
and, as others have pointed out, he was previously restricted to ruling on text. as a supreme court justice, he would be able to create or revoke those texts.
I hate to break it to you, but the belief that there is no fundamental right to privacy is actually one held by many people and is actually quite a mainstream position.
I also think we have to question whether the hubris of a young lawyer fresh out of a Supreme Court clerkship working in an ideologically-driven job is really where he stands now. I know that my positions have evolved significantly since 1981 and there is no reason to believe Roberts is any different. It’s the job of 25 year olds to take extreme positions within organizations. Think about your own experiences.
i don’t doubt that many people think there is no fundamental right to privacy. (but i do think their ideas on it might change depending on the circumstance- i bet most straight married couples don’t think cops should monitor them to make sure they’re not practicing oral sex in states where that might be/ have been illegal. and it does seem like a majority of the people in the us have used birth control at some point, which is also legal because of the right to privacy, at least as i understand it.)
but even if you’re talking about privacy in the legal sense, this is another example where i could see the logic in an opinion arguing that the right to privacy is not explicit in the constitution, even if i didn’t like the result. i’ve read the articles in the atlantic monthly about how abortion rests perilously on the right to privacy, which even though we may like the outcome, is not a solid legal argument. it was inelegant, true. but as i wrote before, i think roberts’s track record reads more like a social conservative than a constitutional conservative. i think he’s more worried about the abortion part than the privacy part.
and maybe i’m super-cynical, but i think the president has private conversations with potential nominees, and if he thinks the guy is to the right, i’d believe it. do you really think bush wuld choose someone he wasn’t pretty sure about? (yes, i know about all those justices who turned out not to be as right or left as they were thought to be.) maybe roberts’s views have changed in the last few years, but he is still endorsed by bush and santorum, which seems like it has to mean something.
yes, my views have evolved since 1981, but i was only 6 then. my political ideas have not dramatically changed since 1991, though. sure, most of us mellow with age, but do you honestly think it’s likely that he has substantively changed his views?
By the way, I hope everyone has taken note that Roberts was one of the behind-the-scenes lawyers who successfully worked to overturn a Colorado law that would have prevented localities from enacting legislation to protect against discrimination based on sexual orientation. The lead lawyer in Romer v. Evans has said that Roberts’ assistance on the case was “absolutely crucial” and that the pro bono work that he did on the case helped the legal team to prepare for the tough questions they faced from conservative justices on the court. So it’s clear if nothing else that Roberts understands how conservative ideals can be brought to bear to argue in favor of the sort of equal protection for all citizens more traditionally espoused by liberals, and that he’s not some crazy ideologue. I find that very reassuring.
Exactly, alsis…
I sure hope that the investigation into Roberts’ shady “adoption” dealings will find some dirt on this guy.
Because otherwise, the right to privacy might not be protected.
:P