ConfirmThem

By Marshall Manson Posted in Roberts — Comments () / Email this page » / Leave a comment »

The author of this comment is sitting across from me this moring, and he pointed out this comment, which I thought would be of interest to readers:

There is way too much Conservative hand-wringing over Roberts’ response concerning Griswold!

Democratic Senator Herb Kohl asked Roberts: “The Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception. Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?� One way Supreme Court justices are able to expand precedent is by phrasing the holdings of prior cases in general terms. Roberts reeled the Senator’s statement back in: “I agree with the Griswold court’s conclusion that *marital* privacy extends to contraception . . . The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

Kohl announced that he was “delighted� with Roberts’ answer because “many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you’ve essentially accepted . . . the basis for the court’s reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.� Roberts declined Kohl’s invitation to comment, but there is a strong argument that Kohl’s unnamed scholars are wrong.

The precise issue before the Court in Griswold in 1965 was whether a Connecticut law that forbid the use of contraceptives invaded the privacy of married individuals. The case centered on the sanctity of marriage and its fundamental values. Justice Douglas in the majority opinion asked: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.� Justice Goldberg in his concurring opinion wrote: “Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection.�

Griswold was more about marriage than it was about sexual privacy. Or so the state of Massachusetts thought until the Supreme Court, in the 1972 case Eisenstadt v. Baird, struck down a similarly hardly-ever-enforced law against contraceptives that applied only to unmarried people.

The Court majority admitted that Griswold had been based on the unique marriage relationship, but then, like sly Senators, it spun the case from there: “[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.� At that moment, the Court leapt into new territory that laid the foundation for the Roe decision the following year. Eisenstadt is the key evolutionary link between Griswold and Roe.

In sum, Roberts carefully limited himself to the specific holding of the Griswold case, said nothing about Eisenstadt in this context, and left himself a jurisprudential exit if the issue of reconsidering Roe should ever come before him.