THE BLOG
09/14/2005 12:42 am ET Updated May 25, 2011

"His Answers Are Misleading": Don't Buy Roberts' Privacy Talk

Much is being made of John Roberts’ claim that he believes there is a right to privacy in the Constitution. But it was a meaningless statement.

Here’s what Roberts said in an exchange with Sen. Joe Biden:

BIDEN: 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. [emphasis added]

If Roberts' definition of privacy rights encompasses the views of "every justice" -- including Justices Scalia, Thomas and the late William Rehnquist -- then it has nothing to with the privacy right that currently underpins the right to an abortion and the right to be gay. Because the three tried to squelch those rights.

Even Roberts’ seemingly explicit embrace of Griswold v. Connecticut was shady.

Griswold is the case which concluded there is a broad right to privacy inherent in the Constitution, and was a precursor to Roe v. Wade.

But when Roberts endorsed Griswold, he did not endorse its ruling that there is a broad right to privacy.

He only said, “I agree with the Griswold court's conclusion that marital privacy extends to contraception.” Just marital privacy!

(Keep in mind that in between the Griswold and Roe rulings was Eisenstadt v. Baird, which said single people have the same privacy right to use contraception. Roberts said nothing about Baird.)

Finally, Roberts talked in detail about his respect for the "stare decisis" principle (which gives great weight to Supreme Court precedents) and specifically said he would use the principle if he had to revisit Roe.

But "stare decisis" hasn’t stopped the right-wing judicial activists from their stated desire to overturn Roe. Like anything else abstract, it can be distorted beyond recognition.

In fact, when the Supreme Court upheld Roe in Planned Parenthood v. Casey, Rehnquist’s dissent (joined by Scalia and Thomas) said up front: "We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases."

Add all that up.

Toss in Roberts’ disingenuous refusal to state his views on the past decisions of Roe and Casey, even though he expressed his views on other past cases.

Top it off with the Family Research Council statement "Applaud[ing] John Roberts' Roe v. Wade Response".

And you get one nasty anti-privacy sundae.

As Biden concluded at the end of his questioning, "his answers are misleading." Roberts simply cannot be taken at face value.

More on the Roberts hearings at LiberalOasis