Redstate

I know on various threads and websites, the conservatives are carping about Roberts (in opposition to what we see in this article).

Over on the liberal websites, they are crazy that Roberts is another Scalia.

My take is that we'll know soon enough.

There are two abortion cases up this term.

The question it does pose is whether or not Bush views Roberts as a bone to conservatives so that he can do something else with the O'Connor nomination.

Bush campaigned on a belief that judges should interpret, not make law;  that judges should strictly adhere to the constitution as it is written.  He has nominated judges who believe the same thing time after time after time.  And yet you still seem to think he throws bones to please some loud constituency.  

It doesn't even make sense, unless you really believe that all politicians are liberals trying to trick conservatives into believing they're one of us.  GWB just doesn't strike me as such.

favorable articles about him ('cause that ain't going to happen), so why would you view Roberts as just "a bone" to conservatives.  Bush is far different than his father, he wanted acceptance by the Dem's and liberal media.  Bush is much more like Reagan, he is conservative and deal with it.  Just look at how conservative all his judicial nomminees are and how he stuck with them.  He is not looking to reach out to Democrats, he will nominate a conservative.

Okay ... the question on Roberts is that he doesn't seem to be conservative based on some of the things he says ... other things he says are definitely conservative sounding.

I guess what has me concerned is what I perceive as a push by Bush to put Gonzales on the court.

And on Roberts a few of his sound bites that make him sound unlikely to limit or reverse Roe.

I understand that he can't stand up and say, "I'm going to reverse Roe", and HOPEFULLY, he's just being clever with his choices of words.

After Souter and all, I'm just nervous.

Roberts has come out in explicit support of Griswold, and the so-called general "right to privacy," that it creates.  

http://www.confirmthem.com/?p=1218

This case is the foundation for the reasoning in Roe, Casey, Romer, Lawrence, etc., and is the champion for those who favor "substantive due process."  Roberts' support for this "right" is a very serious problem for conservatives.

For fuller explanation, visit Andrew's thoughtful post over at confirmthem.

http://www.confirmthem.com/?p=1223

I must say, I now have to question Sekulow's judgment.

How does this differ from what Thomas said?

that I completely agree with this...

"Judges don't have a license to go out and decide, `I think this is an injustice and so I'm going to do something to fix it.' That type of judicial role, I think, is inconsistent with the role the Framers intended."

Sometimes it is the role of the courts to intercede when the government is performing an injustice.  That is the entire REASON for the Bill of Rights and Amendments such as the 14th.  

IMO, the courts should ALWAYS view liberty has an ideal that should be adhered to whenever possible.  I'm suggesting they should "create" rights per se.  But a court should be mindful of what rights, real or implied, our government is looking to restrict.

I don't know if Conservatives will EVER overturn Roe v Wade if they are looking to do so by eliminating the "Right to Privacy".  

In his own words.

In his Own words:

GRAHAM: I know people don't like being labeled, Put me in that category. But I'm in a business where people label me all the time. But I ask for it, I run for office.

But we do tend in our business of politics to try to label people, particularly when we're talking about judges.

When the president introduced you to the United States, to the people of the United States, he said you were a strict constructionist. Do you know what he meant by that and why he chose to use those words?

ROBERTS: Well, I hope what he meant by that is somebody who is going to be faithful to the text of the Constitution, to the intent of those who drafted it, while appreciating that sometimes the phrases they used, they were drafting a Constitution for the ages, to secure the blessings of liberty for their posterity. They were looking ahead. And so they often used phrases that they intended to have...

(CROSSTALK)

GRAHAM: Does that term make you feel uncomfortable?

ROBERTS: No.

would be that the child is being denied their due process rights provided under the 14th Amendment.

I believe God promised to not afflict us with more than one Souter in a generation - at least someone else posted that.

RE: Roberts (aka The Conservative Slick Willie)

See my comment here.  If you very, very carefully read the transcripts on Roberts, he says things that can be parsed just like Bill Clinton.  AND IN GREAT BIG BOLD LETTERS -- I do NOT believe he is a liar and (yucky words omitted) like Bill Clinton.  I just mean that he is very careful in what he says.  His answers pacify the D asking the question and still leave enormous amounts of wiggle room on the conservative side.

His conservative statements, on the other hand, are plain.  See his statements on the place of judges in our representative system, the fair application of the law as it is written, etc.

And can just focus on the real one.

by equal protection to the unborn having primacy over privacy of the mother.

Most Americans believe that a Right to Privacy is a Constitutional right.  The APPLICATION of that right to Privacy may vary but the fundamental right to privacy is something that most Americans believe is immutable.

But this is about more than Roe, in my opinion.  A recognition of the right to privacy is a recognition of the judiciary's right to create new law.

See my comment here.

Basically Thomas said the same things that Roberts is saying.  I don't think it's a huge dpearture from the kabuki dance we have to play on this.

It is a particularly silly argument to say that the Constitution says X merely because most Americans think so.

And properly, the right to privacy articulated by the Courts is no more a right than my right to clunk you on the head. That doesn't mean there isn't such a right, merely that the right articulated is a fiction.

Do you have any examples of injustices that the Federal government would attempt to perpetrate upon us that wouldn't be unconstitutional?

that is your opinion.  There are many learned scholars who believe that the Constitution is BASED on a premise of a Right to Privacy.

I think you will agree that the 9th Amendment does, at the very least, grant that there are SOME rights that are not enumerated which all Americans should still enjoy?

There are many learned scholars who believe that the Constitution is BASED on a premise of a Right to Privacy.

We here have no interest in the writings of the Xenocultural Scholars of Planet Zoobily-Zooble.

I think you will agree that the 9th Amendment does, at the very least, grant that there are SOME rights that are not enumerated which all Americans should still enjoy?

You aren't reading what I'm writing. And I find your formula curious.

Those rights are not necessarily protected by the constitution.  They are protected by elected LEGISLATURES in the various states.

Granted, the constitution is a counter-majoritarian check on majority rule, but those counter-majoritarian measures were first approved by the people, as a SUPER-majority.  Any new counter-majoritarian measure must similarly be approved by a super-majority.

I think we'd probably agree on historical precedents that have been subsequently resolved.  

We're a better country today than we were yesteryear (Note to editors: please don't revoke my conservative credentials for saying that).

only extremists believe that Griswold was a sound decision?  

I read your post.  There is a big difference between Thomas's acknowledgment of Griswold as court precedent to be respected, and Roberts's explicit AGREEMENT with that decision.

Sometimes our Court MUST intercede when a clear injustice is occurring in our country.

From your link, Roberts said this to Kohl's follow-up about how wonderful Griswold was to the Roe precedent:

ROBERTS: Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. It was surprising when it came before the court in 1965, I think, to many people.

The other area is an area that is, to quote Justice Ginsburg from her hearings, live with business. There are cases that arise there.

And so that's an area that I do not feel it appropriate for me to comment on.

From Rehnquist's dissent in Casey

he said:

The Court in Roe reached too far when it analogized the right to abort a fetus to the rights involved in Pierce, Meyer, Loving, and Griswold, and thereby deemed the right to abortion fundamental.

Just because the left has equated Griswold with abortion does not mean that it is true.  Rehnquist was perfectly capable of accepting and endorsing Griswold while also opposing Roe.  Roberts can do the same thing.

So what's a contemporaneous injustice that the Court has to resolve that the legislature isn't in the better position to resolve?

offhand would be gay rights.  Specifically the rights of gay people to do what they would like in their bedroom without fear of persecution and criminal prosecution.  

(Caps are mine)

SHUMER: Do you agree there's a right to privacy to be found in the liberty clause of the Fourteenth Amendment? And you responded, I do, Senator. Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy, and it's not protected only in procedural terms but it's protected SUBSTANTIVELY as well. That accurately states your view?

ROBERTS: Yes.

SCHUMER: And on the Griswold case and the right to privacy there, you said, in reference to Senator Kohl's question, quote, "I AGREE WITH THE GRISWOLD COURT'S CONCLUSION that marital privacy extends to contraception and availability of that."

The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interests protected under the due process clause. That is your accurate view?

ROBERTS: Yes, sir.

I honestly don't understand your point.

Is that if you AGREE with Griswold (rather than simply acknowledge its precendential force, as Thomas and Rehnquist did), then you also must agree with the judicial right to invent new laws.

I believe that the Court has settled the question of personal, consensual, private behavior.  But it's not like any states are in the process of trying to impose new statutes criminalizing sexual behavior between consenting adults on a non-transactional basis (i.e., I'm okay with laws criminalizing prostitution).  So it's not much of a burning issue.

Maybe it's the libertarian impulse in me, but I don't really care to have the government get involved in sexual relations between consenting adults.

Of course, I'm not entirely sure why that can't be resolved at the legislative level by eliminating the outdated laws on the books.  Living in Virginia, its amazing to see what is still technically illegal.

But the Texas case was more about equal protection under the law as opposed to 'gay rights'.  Texas' law, iirc, was that it was illegal for two men to engage in certain acts, but it was not illegal for a man and a woman to do the same thing (but the specifics don't really matter I think).  So under the 14th amendment, the Texas law singled out a specific group for criminalizing their behavior.  That's an obvious affront to due process and equal protection and the court rectified that situation.

So we agree here, I think.

There are many learned scholars who believe that the Constitution is BASED on a premise of a Right to Privacy.

This is ridiculous. No such scholars exist. Or if they do, they teach at Schools of Typewriter Maintenance.

I think you will agree that the 9th Amendment does, at the very least, grant that there are SOME rights that are not enumerated which all Americans should still enjoy?

The 9th Amendment grants nothing. None of the Amendments in the Bill of Rights grant a right. They enumerate those rights to say specifically Here Congress may not tread.

The Incorporation Doctrine is a sham, and is mere legislating.

The Ninth Amendment recognizes that not all rights must be in the Bill of Rights in order that they be inherent rights. That's why it says

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That those rights are enumerated does not mean that those rights not enumerated are any less rights. That is all the Amendment says. Anything more is mere judicial creation.

And, finally, on the topic of privacy, the judicially crafted "right to privacy" is mere legislating. However, as I've now said to you too many times, that doesn't mean that there is no inherent right to privacy, merely that what's sold as one by the Courts is not in fact that right, but is rather a policy preference expressed by the Courts.

FTR, I'm not suggesting that there is a laundry list of injustices that the courts need to make right.  

I was merely commenting on Mr. Roberts comment about the role of the Supreme Court.  

The 9th Amendment grants nothing. None of the Amendments in the Bill of Rights grant a right. They enumerate those rights to say specifically Here Congress may not tread.

But the 14th, as interpreted for the past 100+ years, applies the Bill of Rights to ALL levels of government.  

And, finally, on the topic of privacy, the judicially crafted "right to privacy" is mere legislating. However, as I've now said to you too many times, that doesn't mean that there is no inherent right to privacy, merely that what's sold as one by the Courts is not in fact that right, but is rather a policy preference expressed by the Courts.

But that seems to be a matter of degree.  

Agreeing with Griswold's holding does not automatically equate the right to create new privacy rights.

The Rehnquist/Scalia/Thomas language in Casey

says this:

In construing the phrase "liberty" incorporated in the Due Process Clause of the Fourteenth Amendment, we have recognized that its meaning extends beyond freedom from physical restraint. In Pierce v. Society of Sisters, 268 U.S. 510 (1925), we held that it included a parent's right to send a child to private school; in Meyer v. Nebraska, 262 U.S. 390 (1923), we held that it included a right to teach a foreign language in a parochial school. Building on these cases, we have held that that the term "liberty" includes a right to marry, Loving v. Virginia, 388 U.S. 1 (1967); a right to procreate, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); and a right to use contraceptives. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). But a reading of these opinions makes clear that they do not endorse any all encompassing "right of privacy."

(emphasis mine)

I think what Roberts has said is perfectly compatible with the judicial philosophy of Rehnquist, Scalia, and Thomas.

But the 14th, as interpreted for the past 100+ years, applies the Bill of Rights to ALL levels of government.

No. Actually, it was a bitterly-fought slog until the Progressives got on the Court, and even then, it only started in 1925 or so, and was incremental thereafter.

And, regardless, it's still wrong.

But that seems to be a matter of degree.

No, it's a matter of "type," and is also an important matter of "origin."

Sure there were lots of differing opinions on what the 14th covered.  But Ex Parte Virginia was in 1880.  Perhaps it didn't become universally accepted until the past 50 years or so but the debate was certainly before 1925.

Type and origin.  OK.  But once you get into implied rights, you can't help but have varying definitions of what those rights are.

Sure there were lots of differing opinions on what the 14th covered.  But Ex Parte Virginia was in 1880.

Have you actually read Ex Parte Virginia?

Perhaps it didn't become universally accepted until the past 50 years or so but the debate was certainly before 1925.

As a formal practice by the Supreme Court, 1925 is the marking point.

Type and origin.  OK.  But once you get into implied rights, you can't help but have varying definitions of what those rights are.

You're still not listening. I'm not talking about "implied rights." I have no idea what those are. Any right to privacy is not "implied," except through judicial creation, which like I keep saying, is mere legislation.

This discussion can now be summarized as follows:

Thomas: There is no right to privacy as the Court enumerates it, but there may be such a right not anywhere enumerated in the Constitution, but an inherent right nonetheless.

Flyerhawk: But there is a right to privacy!

Thomas: Maybe, but not the one the Court "discovered."

Flyerhawk: But everyone thinks there's a right to privacy!

Thomas: And I'm not necessarily disagreeing. But the one that the Court fleshed out is a mere creation of its preferences, and is no inherent right at all. They may have missed a real right to privacy, and tarnished it with their legislating.

Flyerhawk: But all we're doing is arguing about implied rights.

Thomas: I see I have to kill you now.

Just threw up.

They are going to fight this tooth and nail. Watch. If we think we saw people get personal with the judiciary when they killed off Terri Schaivo, you ain't seen nothin' yet.

I understand what you are saying.  And I'm not saying that the currently accepted "right to privacy" is proper.

My original point is that it would be difficult for the court to strike down Roe V Wade through the elimination of a Right to Privacy.  

You keep telling me how I'm wrong but you don't explain why.  Implied rights aren't necessarily derived from the 9th.  If you agree that a Right to Privacy fo some sort exists then you need to explain why.   Where does this right derive from?

Perhaps I don't understand Ex Parte Virginia but it certainly seems to suggest that States must adhere to the equal protection clause of the 14th.

He's in. Next please...

(I'm in a happy place, so I'm gonna let the bait go.)

The language from that opinion does make me feel much better about what Roberts said.

The acceptance of a behavior because it is "Personal, consensual, and private" is an open-ended permission slip to do almost any activity in the privacy of your house.  For example, any type of drug use would be acceptable under the banner of "personal, consensual, and private behavior". This is analogous to the hetero/homosexual marriage argument.  If heterosexual's can be married under state law then homosexuals should have the same opportunity.  But if that argument is accepted than any combination of any number of persons should also have the same opportunity.

Where and how the line is drawn (read: laws pertaining to behaviors) is a function of the legislature acting as the people's agent.

if you take for granted that people don't get to choose who they have sex with.  Under Texas law, all men had the same right to engage in sodomy with women, and all men were forbidden to engage in sodomy with men.  

The law was applied equally to all men.  Treating it as an equal protection issue acknowledges that a man practicing homosexuality is inherently different from other men (in the same way that black men are different from white men).  

But if sodomy is BEHAVIOR, then it is no more an equal protection issue than outlawing adultery is.  Nobody makes the argument that men who are unable to refrain from committing adultery are inherently different from those who can.  (We fundamentally assume that they CAN restrain from committing adultery).  Leave aside the debate over whether private sex acts should be legislated.  

of my post.  It makes no sense.

I share your concerns, though.  I just think that Roberts is better than some seem to expect.

As a matter of personal perspective, my wife is way more pro-life than I ever was.  I can't imagine Roberts could come home after declaring PBA is unconstitutional or other actions on this issue considering that his wife would have changed the locks and his clothing would be on the lawn.  But that's just me.

That is the only reasonable conclusion here.

My original point is that it would be difficult for the court to strike down Roe V Wade through the elimination of a Right to Privacy.

And my original point is that they could say, we boofed it, there is no right of the sort we recognized, there is a right to privacy, just not what we said, and it has nothing to do with this.

You keep telling me how I'm wrong but you don't explain why.

I've done very little else.

Implied rights aren't necessarily derived from the 9th.

God only knows where they're derived from, but I never said they're derived from the 9th.

If you agree that a Right to Privacy fo some sort exists then you need to explain why.   Where does this right derive from?

Like I keep trying to say, if it exists, it is inherent. It does not "derive" from anywhere save the person himself, by virtue of being human, sort of like life, liberty, religious belief and practice, etc.

This is why I despair of ever reaching you on these discussions. A right does not "derive" from anywhere, or it is no right at all, but a gift from another human, that can be taken at will.

Perhaps I don't understand Ex Parte Virginia but it certainly seems to suggest that States must adhere to the equal protection clause of the 14th.

No, you don't; and by definition, the equal protection clause of the Fourteenth Amendment applies to the States.

I'd disagree with you on the drug issue because it requires a transaction at some point, so it is not personal and confidential.  I support laws that prohibit prostitution and I support most laws that support drug criminalization, but not laws that intrude on the consensual sex lives of adults.

I know it's not a popular opinion in some conservative circles, its definitely more libertarian, but I just don't see why the government cares what type of sexual activity two consenting adults engage in.

The church has a place to condemn or not the behavior of adults.  The government doesn't.

It's just my opinion.

let me be wrong.

I hope I am wrong.

But if they don't do it this time, count on it for the next soon to come.

I personally don't care what others do in their own bedrooms, and I don't think the government should either. But I don't want it paraded in front of me or my children.

I'd agree with you that the right to privacy in this discussion should include the concept that some things should be left private.  I don't care what you do in the bedroom, and I don't want to know about it.

Of course Sen DeWine might object.  /snark

Excellent story. Thanks for keeping us posted

The action that brings drug use this transaction limitation is if the person bought their drugs.  How about the person that sets up a meth lab in his apartment?  Is this an exception from the limitation because he bought the components to make the drugs?  If it is then, the house the personal and confidential sex acts at occurring in was also bought and therefore there is a transactional limitations involved.  If it doesn't then certain types of drug use would be permitted under the personal and confidential scenario.

I have been watching this blog for some time but this is my first post. I have to agree with OZ about the things we don't know about Roberts. Who knows when the conservative planets will be aligned like this again. Should have nominated a known conservative.

Go to www.boston.com

But the story goes that Bush the Elder was deceived with regards to Souter by John Sununu, who was before that deceived by a former liberal NH Republican Senator (Warren Rudman???).  Sununu was quoted as saying Souter is a slam dunk for conservatives.  

So while Bush the Elder of course deserves lasting blame for inflicting Souter on us and not going with someone like Emilo Garza, at least he can apparently say with some honesty that he was deceived.

If W learned anything from H, then it should have been to choose much more carefully.  Hopefully you're right about the current Bush, but the point made repeatedly by Ann Coulter has merit; that being that Bush could have chosen someone with a more solid and extensive record so as to lessen the mystery.  With a GOP Senate and the Gang of 14's approval of judges like Pryor and Brown, he could have been bold.  Maybe Bush knows something we don't.  I certainly hope so.  

There can be no mistakes anymore.  Reagan and Bush I combined to make just 2 good picks out of 5.  If they had gotten just one of those bad ones right, then there would have been a window for overturning Roe before Byron White retired.  If they had managed 4/5, then we would have had a conservative majority up until this point.  Now we are in the position of hoping Bush has chosen wisely with Roberts, plus hoping that he does the same with O'Connor's replacement.  Then we would need Stevens or Ginsberg to retire before we finally have another shot at a conservative court (unless of course Kennedy came back from the dark side).  

Considering that 6 of the 8 currently on the bench were Republican nominees, that's a sad state to be in.