Topic: Right of Privacy & the Fourteenth Amendment
Senator: Biden
Date: SEPTEMBER 14, 2005
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SPECTER: Senator Biden?
BIDEN: Good morning, Judge. How are you?
ROBERTS: Good morning, Senator. Fine, thanks.
BIDEN: I went back and looked at something you said yesterday, which -- I was reminded by my son, who's done some appellate work; nothing like you -- and he said I thought I heard him say this, and I went to staff, got it.
Yesterday morning you said, "I went back once and counted the questions during my half hour. There were over 100 questions the court asked." So you're not at all offended by us interrupting you like we do.
You're used to being interrupted, aren't you?
ROBERTS: I'm used to being interrupted before the court. That's for sure, Senator.
(LAUGHTER)
BIDEN: Well, we're kind of a court here. We're kind of a court.
You're not entitled to the job. God love you, you've been nominated, and your job is to demonstrate that there's no presumption, as you well know.
So I hope you won't mind some questions -- I promise I won't interrupt, if you give short answers. OK?
ROBERTS: I'll try, Senator.
BIDEN: OK. All right. Great.
I'd like to follow up on yesterday. I asked you if you agreed there was a right of privacy to be found in the liberty clause of the Fourteenth Amendment. And you said, and I quote, "I do, Senator. I think that the court's expression -- 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." Is that correct?
ROBERTS: Yes.
BIDEN: Now, one of the things that's been amazing is you are one of the best witnesses that I think has come before this committee, and I've been here 30-some years. And is that you've convinced the folks who share Senator Brownback's view that you're going to be just right for them, and you've convinced the folks that share Senator Kennedy's view that you're going to be just right for them.
And I think I'd like to plumb a little bit more closely this notion of how you view this right of privacy.
Now, if you take a look at Justice Scalia's comment about that right to privacy found in the Fourteenth Amendment, as related to the Casey case, he said, "The issue is whether abortion is liberty protected by the Constitution of the United States. I am sure it is not, because of two simple facts: The Constitution says absolutely nothing about it and the longstanding traditions," et cetera.
Then on that same case, the quote coming from -- I've got to make sure I get the right justice here -- from O'Connor, Kennedy and Souter's dissent, they said, "The liberty of a woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties and physical constraints, the pain that only she must bear. Her suffering is too intimate and personal for the state to insist, without more, upon its own version of a woman's role."
Two fundamentally different views of the right to privacy as it relates to that issue.
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