Topic: Right of Privacy in the Liberty clause of the Fourteenth Amendment?
Date: SEPTEMBER 13, 2005
SPECTER: Senator Biden?
BIDEN: Thank you very much.
Hey, Judge, how are you?
ROBERTS: Fine, thank you.
BIDEN: You know, to continue your baseball analogy, I'd much rather be pitching to Arthur Branch, sitting behind you there, on "Law and Order," than you. It's like pitching to Ken Griffey. I mean, you know, I'm a little concerned here that -- I'd like you to switch places with Thompson. I know I know as much as he does.
BIDEN: I don't know about you.
Judge, look, I want to try to cut through some stuff here, if I can. I said yesterday this shouldn't be a game of "Gotcha," you know. We shouldn't be playing a game. The folks have a right to know what you think. You're there for life. They don't get to -- this is the democratic moment. They don't get a chance to say, "You know, I wish I'd known that about that guy. I would have picked up the phone and called my senator sand said, 'Vote no,' or, 'vote yes.'" Whichever.
And so what I'd like to do is stick with your analogy a little bit, because everybody's used it: baseball. By the way, to continue that metaphor, you hit a home run yesterday. I mean, everybody -- I got home and I got on the train and people saying, "Oh, he likes baseball, huh?" Seriously. The conductors, people on the train. And it's an apt metaphor, because you just call balls and strikes, call them as you see them, straight up.
But as you well know, I'd like to explore that philosophy a little bit, because you got asked that question by Senator Hatch about what is your philosophy, and the baseball metaphor is used again.
As you know, in major league baseball, they have a rule. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges (ph) is: Do they have good eyesight or not? They don't get to change the strike zone. They don't get to say, "That was down around the ankles and I think it was a strike." They don't get to do that.
But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution defines the strike zone. Two-thirds of the senators must vote. You must be an American citizen, to the chagrin of Arnold Schwarzenegger, to be president of the United States -- I mean born in America to be a president of the United States.
BIDEN: The strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable?
So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable?
Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure.
And the same thing prevails for a lot of other parts of the Constitution. The one that we're all talking about -- and everybody here, it wouldn't matter what we said, from left, right and center -- is concerned about the liberty clause of the Fourteenth Amendment.
It doesn't define it. All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for.
You get to go back and decide. You get to go back and decide like in the Michael H. case: Do you look at a narrow or a broad right that has been respected? That's a strike zone.
So, as Chris Matthews said, "Let's play baseball here." And it's a little dangerous to play baseball with you, like I said. But really and truly, it seems to me maybe we can get at this a different way.
The explicit references in the Constitution are -- you know, there's nothing anyone would expect you or any other judge would do anything about. You wouldn't say, "You know, that's a really bad treaty they're voting on, so we've got to make it require 75 votes in the Senate."
You can't do that.
But again, as Justice Marshall said -- and I quoted him yesterday -- he said that Marshall's prescription that the Constitution endure through the ages -- I might add, without having to be amended over and over and over and over again -- after the first 10 amendments, we haven't done this very much in the last 230 years.
So many of the Constitution's most important provisions aren't the precise rules that I've referenced earlier.
And sometimes the principles everyone agrees are part of the Constitution or as the late chief justice -- your mentor -- said, quote, "tacit postulates."
BIDEN: He used that, as you know, in a case just before you got there, in Nevada v. Hall.
He used the phrase "tacit postulates." He said that these tacit postulates are as much ingrained in the fabric of the document as its express provisions. And he went on to conclude that -- this case was about -- the case is not particularly relevant, but the point is, I think -- Chief Justice Rehnquist made this vital point and it was about state's right and language that didn't speak directly to them in the Constitution.
And he concluded that the answer was a rule he was able to infer from the overall constitutional plan.
So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer.
So I want to try to figure out how you infer. I want to figure out how you go about this. And so let me get right to it. And I want to use the Ginsburg rule. I notice Ginsburg is quoted. I'm quoted all the time about Ginsburg: "Judge, you don't have to answer that question."
I might point out that Justice Ginsburg, and I submit this for the record, commented specifically on 27 cases, 27 specific cases.
I will just speak to a couple of them here.
SPECTER: Without objection, it will be made part of the record.
BIDEN: I thank you very much.
Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think?
Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?
ROBERTS: I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.
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. Again, I think every member of the court subscribes to that proposition.
If they agree with Bowling against Sharpe, as I'm sure all of them do, they are subscribing to that proposition to some extent or another.
BIDEN: Do you think there's a liberty right of privacy that extends to women in the Constitution?
BIDEN: In the Fourteenth amendment?
BIDEN: Now, I assumed you would answer it that way.
Let me suggest also that I asked -- I'm not sure whether I asked or one of our colleagues asked Justice Ginsburg the question of whether or not it would be a ball or a strike if in fact a state passed a law, a state passed a law prohibiting abortion.
BIDEN: And she said, "That's a foul ball. They can't do that."
Let me quote her. She said, in response to Senator -- I was going to say Brownback -- Senator Brown, when he was here, when she was up, of Colorado. She said, quote, "Abortion prohibition by a state controls women and denies them full autonomy and full equality with men. It would be unconstitutional."
What is your view, according to the Ginsburg rule?
ROBERTS: Well, that is in an area where I think I should not respond because...
BIDEN: Why? You said you'd abide by the Ginsburg rule?
ROBERTS: Then Judge Ginsburg, now Justice Ginsburg, explained that she thought she was at greater liberty to discuss her writings. She had written extensively on that area, and I think that's why she felt at greater liberty to talk about those cases.
In other areas where she had not written, her response was that it was inappropriate to comment.
In particular, I remember her response on the Maher and the Harris cases. She said, "Those are the court's precedents. I have no agenda to overrule them, and I will leave it at that."
And I think that's important to adhere to that.
Let me explain very briefly why. It's because if these questions come before me either on the court on which I now sit or if I am confirmed on the Supreme Court, I need to decide those questions with an open mind, on the basis of the arguments presented, on the basis of the record presented in the case and on the basis of the rule of law, including the precedents of the court -- not on the basis of any commitments during the confirmation process.
ROBERTS: The litigants have a right to expect that of the judges or justices before whom they appear.
And it's not just Justice Ginsburg who adhered to that rule. I've gone back and read...
BIDEN: Well, she obviously didn't adhere to it with regard...
ROBERTS: Well, I explained why she felt at liberty to comment...
BIDEN: Well, how's that different?
That -- I would suggest, Judge -- is a distinction without a difference in terms of litigants, the way you've just explained it. Does a litigant, in fact, said because the judge wrote about it and then spoke to it as a judge, that somehow I am being -- I'm going to be put at a disadvantage before that judge in the court?
That's a stretch, Judge.
ROBERTS: Well, that's how Judge Ginsburg explained it at her nomination hearings. She said she could talk about the issues on which she had written.
BIDEN: Did that make sense to you?
ROBERTS: I think it does make sense that she can be questioned about the articles that she had written, because they raised certain questions and she felt at liberty to discuss those.
I think it's something entirely different if you talk about an area that could come before the court. This is an area that cases are pending before the court and likely will be pending in the future.