The Supreme Court's Biggest Question - New York Times

The Supreme Court's Biggest Question - New York TimesSeptember 18, 2005
The Supreme Court's Biggest Question
By TODD S. PURDUM
WASHINGTON — He had the right to remain silent. He knew that everything he said could and would be used against (and for) him. And yet, when Judge John G. Roberts Jr. was asked last week by Senator Arlen Specter, who heads the Senate Judiciary Committee, whether he believed the "right to privacy" existed in the Constitution, Mr. Roberts replied, "Senator, I do."

History suggests that if he had not, Judge Roberts would have sunk his chances to become the 17th chief justice of the United States just 20 minutes into his 20 hours of confirmation testimony. So many Americans - and so many senators - now accept that concept as an organizing principle of modern life and law that Robert H. Bork's confirmation as an associate justice collapsed 18 years ago this month in the face of his refusal to find such a right.

But the phrase appears nowhere in the Constitution itself: Privacy to do just what, and with whom, under what circumstances, with the benefit of what technology? There's the rub, as Judge Roberts reflected: He endorsed Griswold v. Connecticut, the 40-year-old Supreme Court decision that enshrined married couples' right to use contraception, but steered clear of embracing the more controversial rulings that have grown - or may yet grow - out of it involving abortion, gay sex and the right to die.

"Where we're talking about private heterosexual conduct, we're not in a debate," said Pauline Maier, a historian at the Massachusetts Institute of Technology who studies America's founding era. "But the controversy comes in those areas where people feel the private activity has an impact on the fabric of society as a whole, and that's where liberals and conservatives disagree. Fundamentalist Christians say homosexuality is awful and will damage society, and liberals say, 'If that's who they want to sleep with, let them.' "

The phrase "right to privacy" first appeared in an 1890 Harvard Law Review article by Louis D. Brandeis and his law partner, Samuel D. Warren. And as Judge Roberts noted, the notion began flowering 80 years ago in Supreme Court decisions that struck down laws that required children to attend only public schools and barred the teaching of foreign languages in elementary school, on the grounds that they violated the 14th Amendment's guarantee that no state shall "deprive any person of life, liberty or property without due process of law."

Such reasoning eventually led to Roe v. Wade, the 1973 decision that established a constitutional right to abortion, and for which "privacy" has become neutral-sounding shorthand. It was that precedent that propelled the line of questioning by Senator Specter, a moderate Republican and ardent supporter of abortion rights. But, as Judge Roberts also noted, concepts of privacy are at least as old as the Bill of Rights, and vitally important to libertarian conservatives, who resist government intrusions like the Clinton administration's raid on the Branch Davidian compound in Waco, Tex., or the Bush administration's Patriot Act after the Sept. 11, 2001, attacks.

That is one reason that Judge Roberts's conservative supporters, while perhaps not thrilled with some of his answers, did not rush to condemn him, either. Some of them view Griswold as the Warren Court's sloppy first step down the slippery slope that led to Roe. But they were quick to note approvingly (as Judge Roberts's critics did with concern) that Clarence Thomas had embraced the privacy right outlined in Griswold in his own confirmation hearings 14 years ago, while refusing to extend it just two years ago to cover consensual gay sex.

"I thought his answers on the privacy issue were pretty good, and were satisfying to me," said Leonard Leo, a lawyer who is on leave from a position at the conservative Federalist Society to help coordinate support for Judge Roberts. He noted that, in response to intensive questioning by Senator Charles E. Schumer, Democrat of New York, Judge Roberts had resisted endorsing a "general right of privacy," which Mr. Leo said was "very indicative of his skepticism about the way in which post-Griswold jurisprudence has developed."

"I don't think there's much of a dispute that privacy is embedded in the Constitution and manifests itself in a number of different ways," Mr. Leo added. "It's heartening that what Judge Roberts was trying to do was tie the concept to specific clauses in the Constitution. He recognizes that privacy is not synonymous with abortion. It's about search and seizure; it's about the Third Amendment's ban on the quartering of troops, it's about the First Amendment and freedom of religion."

Forrest McDonald, a constitutional historian who retired two years ago from the University of Alabama, noted that privacy has been a "vexed question" from the earliest days of the republic. The framers believed in protection of home and hearth from government intrusion, but also granted "police powers that were pretty broad, and pretty extreme."

"In 1789, they didn't have such things, but the people of Connecticut would have felt perfectly free to regulate the use of contraceptives as immoral behavior," he added. "Our whole standards and our sexual attitudes have changed." And therein lies the problem in adapting an 18th-century document and concepts of freedom to the 21st century.

"My leanings are toward the so-called originalist positions in constitutional interpretation," Professor McDonald said, "but you can't really be an originalist if you know what it originally was." He said, given his field of study, that he had "lived in the 18th century most of my adult life." And he added: "I love these guys. But there were an awful lot of things they took for granted that I just couldn't live with. I own 20 acres of land, and I'm sitting right in the middle of it. In the 18th century, my neighbors would have had the right to cross it to gather wood, let their hogs and cows run across it, cross it to get somewhere else."

In his opening statement in the confirmation hearings, Senator Joseph R. Biden Jr. of Delaware suggested as much, when he traced the 20th-century court's evolving notions of privacy, then posed pointed rhetorical questions to Judge Roberts about the future: Can a microscopic tag be implanted in a person's body to track his every movement? Can brain scans be used to determine whether a person is inclined toward criminality or violent behavior?

"You will rule on that," Mr. Biden said.

Kermit T. Hall, president of the State University at Albany and an expert on the Constitution, predicted that 30 years from now, a Roberts court would be judged by "the stands that it took with regard to the issues of individual personhood - for me, privacy - and the technological revolution." There will be a range of issues, from the right of universities to peer over the shoulders of students sharing computer files to new pregnancy-ending technologies and life-preserving treatments that might make abortion as it is now understood moot, but even more troubling to some.

"The ethical issues become considerably differently placed, and profoundly stretched, when you anticipate the technology of sustaining life at an earlier and earlier period and, who knows, we may actually discover that cognizance begins in the womb," he said.

Brandeis and Warren's law review article was written in response to advances in photography that allowed swifter and sharper invasions of privacy than ever before. "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life," they wrote, "and numerous mechanical devices threaten to make good the prediction that 'what is whispered from the closet shall be proclaimed from the housetops.' "

So it is perhaps a fitting reminder of that fear that only last week, a journalist's telephoto lens captured President Bush at the United Nations, jotting a note to Secretary of State Condoleezza Rice that he might need a "bathroom break," and the Reuters news agency enhanced the image and beamed it around the world.

"The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form," Brandeis and Warren wrote, "is in reality not the principle of private property, but that of an inviolate personality." Senators weighing Judge Roberts's nomination must now decide whether he has surrendered just enough privacy to give them a sense of his.