One Supreme Court justice is key to privacy rights

June 27, 2009|By ALLAN POWELL

President Obama set the stage for a surge in speculation on May 1, when he made comments about the retirement of Justice David H. Souter.

"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook, it is also about how our laws affect the daily realities of people's lives - whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation," Obama said.

Almost certainly more provocative was the assurance he would nominate a replacement who respects the Constitution and shows "empathy" and "understanding" in making judicial decisions. Conservatives appearing on talk shows the following Sunday lost no time in pointing out "empathy" and "understanding" were obvious code words for liberal judicial activism. Specifically, there was noticeable interest in the privacy issue or, as conservatives prefer, the right to have abortions.


Speculation turned into heated debate when Obama announced his choice May 26 - barely more than three weeks later. The first African-American president selected the first Latina-American to serve on the Supreme Court. Judge Sonia Sotomayor quickly was served notice from leading conservative critics that every aspect of her life will be fair game for inspection - especially her record on privacy rights.

It is, therefore, very clear that one justice is important as to which direction the legal conception of privacy rights will go. Unless one takes the time to study the long and contested legal history of the right of privacy, it is impossible to understand such determined resistance to the legal extensions of privacy rights.

Few of us would quarrel with the early common law emphasis of privacy inhering in place summed up in the terse statement, "A man's home is his castle." Here was an expectation of privacy from the invasive power of both neighbors and government. With the advance of technology, such as the telephone and the camera, it was possible to violate the principle of privacy of place without actually trespassing upon another's property.

An early legal case that required an extension of the legal meaning of privacy involved reporters climbing a tree in the hopes of getting a spicy picture of a prominent couple of newlyweds in their bedroom. The decision moved courts from privacy as a property right to the concept of privacy as a personal right.

This concept was tested in 1973 in the case of Roe v. Wade, in which a Texas law that made it a criminal offense to abort a fetus except upon medical advice for the purpose of saving the life of the mother was voided. Justice Blackmun grounded the decision on the Ninth Amendment's reservation of rights not enumerated in the Bill of Rights, but retained by the people. In addition, the 14th Amendment's nationalization of the Bill of Rights declared in Gitlow v. New York in 1925 was recognized.

The courts further extended the meaning of privacy rights by recognizing legally protected relationships such as doctor-patient, priest-parishioner, lawyer-client and husband-wife relations. The latter became a test case in 1965 when the state of Connecticut passed a law preventing the use of any instrument for the purpose of preventing conception or for assisting in such an offense.

The Supreme Court, by a 7-2 vote, struck down this law in 1965 in the case of Griswold v. Connecticut. The Ninth Amendment again was cited as the constitutional basis for the decision. There has been unrelenting resistance to the court's extensions of the right of privacy inhering in person and in personal relationships.

When Obama eventually names his nominee to our highest court, there will be three major points of contention if the nominee indicates the acceptance of a woman's right of choice. First, the right of choice is immoral; second, any such right should be provided at the state level; and third, the decisions by the Supreme Court in these cases were flawed and must be overturned.

With regard to the moral issue, it can be argued the rights and needs of a mother take precedence over those of a fetus. Further, there is no absolutely reliable final moral court of appeal qualified to void the natural right of choice by an arbitrary claim of superiority. The claim that state legislatures should be the source of these laws is untenable because we would have the undesirable result of a woman having the right of choice in one state, but withheld in another. A basic right should not be dependent on geography. Finally, the decision in Roe v. Wade is far less flawed than the strained legal arguments made by "originalists" that every present-day decision of the court must mirror the intentions of the founding fathers. Such a practice would freeze the Constitution into a shape imagined to be that desired in 1787. How could this be acceptable?

As the confirmation process advances from appointment to confirmation it could become a very heated - even rancorous - debate. We all might be wise to think about a statement written by Justice Louis Brandeis: "The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning, but without understanding." Perhaps Obama was on the mark when he recommended "empathy" and "understanding" as a personal goal. One justice makes a difference on the extent of the "insidious encroachment" of those who oppose the court's interpretation of privacy rights.

Allan Powell is a professor emeritus at Hagerstown Community College

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