I just watched this fascinating exchange between Arlen Specter and John Roberts in the hearings. I don't have an actual transcript, however, so this is paraphrased. Specter began by asking Roberts if he recognized that there is a right to privacy in the Constitution, noting a 1981 memo that Roberts wrote to the then-Attorney General where he referred to the "so-called" right to privacy as an "amorphous right" that was not found in the Constitution. Roberts gave, in my view, an excellent answer.
Roberts said that this memo was in reference to a speech given by a law school dean who did take the position that the right to privacy does not exist, but that he himself does believe in a right to privacy. He then used the very same reasoning that Justice Douglas did in Griswold, pointing to specific provisions of the Bill of Rights that protect various aspects of privacy as evidence that the more general right to privacy did deserve protection. He didn't use the phrase "penumbral reasoning", but that is what he used. He then went even further and noted that the Supreme Court had long recognized a right to privacy in the due process clause and he appeared to endorse the notion of substantive due process. Score big points for Roberts, as far as I'm concerned.
Anyway, Specter then went on to point to the Dickerson case, where Rehnquist, who was opposed to the Miranda decision when it was handed down in the 60s, voted to uphold the Miranda ruling because Miranda warnings had become so ingrained in routine police procedure that it was now a part of our culture and should not be done away with as a result. Specter than asked Roberts if he thought this was analogous to the ruling in Roe v Wade, that even though one might be opposed to the logic of the decision, was it so ingrained in our culture after 32 years that it should be maintained even if one was opposed to it initially.
Roberts correctly said that he wouldn't answer a question about the specific application of a legal principle to a specific case, but he did not that this kind of reasoning is one of many tools at the disposal of a judge. He also noted that the court had already used that sort of reasoning when it came to abortion in Casey. Essentially, Specter, who is pro-choice, wanted Roberts to take a position that Roe was sacrosanct because it was now 32 years old and "ingrained in the culture" and Roberts wouldn't bite. I don't blame him.
The real answer to the question goes deeper than that, of course. I've gone on record as being opposed to general application of stare decisis, and this is why: would anyone today take the position, for example, that Plessy was "ingrained in the culture" and therefore should not have been overturned? By any measure, Plessy was far more ingrained than Roe is today. It had stood as precedent for twice as long as Roe and laws throughout the South were modeled on it. Segregation was far more a normal and unquestioned part of American culture in 1954 than abortion is today. The overturning of Plessy was virtually a revolutionary act.
So the problem with seeking a commitment to stare decisis in particular situations is that no one believes in stare decisis in regard to decisions that they strongly oppose. No sane person thinks that slavery should have been upheld merely because it was traditional and deeply ingrained as a cultural norm. Everyone thinks that deeply flawed decisions should be overturned. So reference to stare decisis as a general reason not to overturn a precedent just don't hold any water without reference to whether that precedent is constitutionally dubious or not.
It was an interesting exchange, both for what was said and what was not said. I was very much relieved to hear that Roberts accepts the notion of substantive due process, however. That is something that the Bork/Scalia wing of conservative judicial theory rejects entirely.
Update: I forgot to add something important in the discussion about right to privacy and Roe. I don't think whether one accepts a right to privacy has much to do with whether one would vote to uphold Roe. The weak link in Roe is not the existence of the right to privacy, but that particular application of it. I think many conservatives make the baby in the bathwater mistake when they attack the notion of a right to privacy in order to attack Roe. You don't have to reject the right to privacy in order to reject the reasoning of Roe, you only have to attack that particular application of it. The application in that case is frankly a pretty weak argument and is easily attacked. Even those who strongly support a right to choose abortion have strongly criticized the weak reasoning in Roe.
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Joseph Farah is going completely nuts.
http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=46291
He is calling it "betrayal".
Yeah, Farah has been hammering Roberts for weeks. Frankly, that makes me far more likely to support him.
If memory serves, Specter was a prosecutor in Pennsylvania. I suspect that much of his questioning of Roberts might be characterized as "cross-examination." He did virtually the same thing with the Anita Hill questioning during the Clarence Thomas confirmation hearings.
I don't have an objection regarding Roberts's nomination. He seems to be a relatively upstanding guy. The senators who want to oppose his nomination can take his refusal to answer certain questions as they wish. The federal constitution gives the senate the authority to "advise and consent" regarding any nomination, and it doesn't suggest (i) the grounds upon which they should refuse to advise or consent, or (ii) the rules of the senate that determine the number of votes required to advise and consent (this relating to the filibuster issue). So, if a senator doesn't like his tie, that senator can vote against him. (Yes, I'm being tongue-in-cheek) And if the senate rules call for a 60 vote majority to break a filibuster, them's the breaks.
Regarding Miranda, I sincerely do not understand the issue. Regardless of whether the Miranda warnings are constitutionally required, giving the Miranda warnings will obviate any question regarding whether the person in custody is aware of his/her constitutional rights. The problem that "law enforcement" has with Miranda is that giving the warnings might result in a reduction in the number of confessions that might otherwise be obtained. That's the true objection to Miranda warnings. I read that on a relatively conservative message board about 7-8 years ago. (Unfortunately, the board doesn't exist any more.) It isn't that difficult to give the Miranda warnings. What does it take? 2 or 3 minutes? I'd be repeating myself, but apparently the only real objection that law enforcement has to giving Miranda warnings is that it will reduce their ability to obtain confessions. I'm not sure that that is a reason for them not to give the Miranda warnings. Seriously.
Regarding Plessy, it was obviously contrary to the text of the 14th amendment. The 14th amendment requires that states give each person the equal protection of the laws. Not each race, each person. The state of Virginia, in Loving vs. Virginia--the inter-racial marriage case--tried to argue that Virginia's anti-miscegenation law impacted people of different races in the same way. The SupCt rejected that argument and essentially said that the 14th amendment applies to persons, not persons of particular races.
Regarding stare decisis, it is a guide. It is not a mandate. It is not written in stone.
The mailbox rule (my favorite from contract law) was judge made common law. A rule was needed, merely because a rule was needed. It was not written in stone. It was actually eventually written into law in most of the US (it originated as common law in the UK).
It would be interesting to see how Roe gets overturned: is it simply going to be "sorry, we got us five votes and we don't like it"? Or are they going to have to develop an equal protection gambit for the fetus?
I mean, Brown was relatively simple and a 9-0 case; the primary holding being that since "separate but equal" was an oxymoron as it pertained to elementary school education.
My own opinion on why "many conservatives" attack the right to privacy is because they are trying to put an end to more than just abortion: the rights to access to birth control and consensual same-sex intercourse are also supported by the right to privacy.
Obviously, this only applies to the particular species of conservatives that are opposed to those things, and perhaps I should refer to "Republicans" rather than "conservatives"...
Well, I may be way off base here, but the short version is, I like Roberts. At least based on what I've seen and read about him so far.
Did anyone catch the bit late last night where one of the senators asked Roberts about his involvement with the case where the Reagan administration supportedb Bob Jones University getting tax exempt status? I was listening on my car radio as that was being broadcast, but I'm only getting it on an AM station, and I lost the signal as Roberts was going to respond. This is one bit of testimony I'd be especially interested in hearing his response to.
Julian,
From Lyle Dennison's commentary on SCOTUSBLOG.
"Some of Roberts' remarks on Tuesday seemed clearly aimed at disarming Democratic critics of his conservative views back when he was a young government lawyer. That appeared to be the case, for example, when he flatly stated that he did not think "it was the correct position to take" for the Reagan Administration to have supported tax-exempt status for a racially discriminatory college, Bob Jones University. That was stated as clearly as anything he said during the day or evening."
http://www.scotusblog.com/movabletype/archives/2005/09/analysis_some_r.html#more