Topic: Right to Privacy
Senator: Schumer
Date: SEPTEMBER 13, 2005
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SCHUMER: OK. I'd like to go over some other things here.
I have to say I've been pleasantly surprised by some of your answers today.
As you know from our private meetings and my opening statement yesterday, my principal concern is ensuring that we don't have people on our court who will dismantle the structural protections that have guaranteed our most fundamental constitutional rights.
SCHUMER: And what troubles me and why I think many people are bothered by this right now, is that the president has openly stated that nominees will be chosen in the mold of justices who have stated, repeatedly, their desire to roll back the clock on some of these basic protections.
In my view, over the past 60 or 70 years, maybe longer, three legs have sustained our constitutional rights: the Fourteenth Amendment's guarantees of equal protection and substantive due process; the right to privacy; and a broad delegation of authority to Congress to pass legislation -- usually under the commerce clause -- necessary to protect our nation's security, the environment, Americans' health and workers' civil rights.
On the first two, you have given answers that I think show that you want to protect those rights. And I just want to repeat them and just make sure that you're on the record for them.
To Senator Biden -- he asked: Do you agree there's a right to privacy to be found in the liberty clause of the Fourteenth Amendment? And you responded, "I do, Senator. 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's protected substantively as well."
That accurately states your view?
ROBERTS: Yes.
SCHUMER: And on the Griswold case and the right to privacy there, you said, in reference to Senator Kohl's question, quote, "I agree with the Griswold's 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 interests protected under the due process clause."
That is your accurate view?
ROBERTS: Yes, sir.
SCHUMER: Just one question. I know this could take the rest of our time, but if you could answer it succinctly, just tell me how -- I'm interested in how you will divine what that right to privacy means. I mean this is going to be an issue in the 21st century that's before us in many, many different ways. And there's no words in the Constitution.
ROBERTS: Well, the court in, for example, I think most recently in the Glucksberg case, talked about the necessity of considering the nation's history, traditions and practices.
As Justice Harlan always explained in his opinions, you need to do that with an appropriate sensitivity to the limitations on the judicial role.
Again, you need to recognize that it is not your job to make policy, either under the Constitution or under the statutes.
ROBERTS: You are interpreting the Constitution. And the appropriate judicial role focuses on those considerations, tradition and history and practice, as developed in the court's precedents. And that's where I would start.
In any case where the issue came up as to whether or not a particular issue was presented under the due process clause, you begin with the precedents. You analyze them under principles of stare decisis -- the precedents in this area, just like precedents in any other area -- and analyze them in light of those different factors.
All the justices recognize that in this area that you need to be especially careful about the source of the content that you're giving to the right at issue, because it is an area in which the danger of judges going beyond their appropriately limited authority is presented because of the nature of the sources of the authority. You're not construing the text narrowly, you're not looking at a particular statute with legislative history. All of the justices recognize that it presents particular challenges.
SCHUMER: OK, thank you.
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