Justice John G. Roberts?

A surprise, indeed! Judge Roberts is the insider's insider, a scion of wealth, privilege and influence. Social conservative and pro business. Still, not a bad pick, I don't think.

It's early days yet. The pro-choice people are screaming about a line in a brief he co-authored wherein he states that there is no "right to privacy" in the U.S. constitution and that therefore Roe v. Wade was wrong and should be reversed.

On the other hand, a scant few years ago, he was confirmed unanimously for D.C. Circuit Court of Appeals. During that process, he said that Roe was settled law and that he would have no problem applying it.

Lawyers argue for their clients. An argument in a brief comes from the duty to represent zealously; ideally the lawyer's personal views are completely irrelevant.

Confirmation hearing statements, however, DO reflect personal convictions.

Everybody on both sides of the aisle likes and respects this man. He is said to be brilliant and possess unimpeachable integrety. I assume that means he told the truth at the last confirmation hearing.

Thus far, I am cautiously optimistic.

One thumb up!

 

Would not have been my first choice but I agree, it's not a bad pick. He comes across as a decent man.

If we view the history of Supreme Court Justices we will see that for the most part, those who were flaming liberals and those who were stanch conservatives modified their views over time as they served.

Yes, I know there were (are) exceptions.

 

But there is no general right to privacy in the Constitution!

 

Nor is there allowance for government to violate privacy. The purpose of the Constitution is not to delineate rights but to restrict government and especially on the federal level.

 

little fauss,

There is no constitutional right to privacy? Well, I don't know...

Whence comes the prohibition against unreasonable searches and seizures, do you think? What is that, if not a privacy concern?

Keep in mind that statutes prohibiting abortion were CRIMINAL in nature. A 4th amendment analysis is perfectly germaine.

 

I just saw on Drudge where the left's Schumer and Boxer are predictably criticising him, but he's also receiving fire from the right's Ann Coulter. That's a good sign, I think.

One thing that struck me is how when Bush announced Roberts, all the TV talking-heads immediately started talking about abortion and about nothing else. It was actually kind of bizarre.

(This Degreeinfo thread has immediately veered into an abortion debate as well.)

If Roberts is confirmed, won't he serve for decades, hear lots of cases and make momentous decisions about a whole variety of things? Obsessing about one issue to the exclusion of all else can be short-sighted and dangerous.

I think that I agree.

But I really do want to learn a lot more about this guy. This is where the Democrats can do a lot of good, if they can avoid partisan stridency while shining their inquisitive light brightly.

 

What about all those penumbras?

 

"...ocelots...penumbras...pipe nipples...PIZZAS!"

-Firesign Theater

 

Damn! Leave it to Bush to nominate someone I have never heard of of!

All in all - I think this is about the best we can get out of Bush. As always, Bush was about as interesting to listen to as, well -- his father. Both need some serious lessons in public speaking.

Bill : Ann Coulter is criticizing the guy? Wow - I like him already. Anyone who is critized by chain smokin' Ann can't be half bad. Now if O'Reilly and Limbaugh starts in on him, then he should surely be confirmed.

 

What was it about privacy and penumbras and Roe v. Wade? I realize that nowhere does the original Constitution or the Bill of Rights or indeed any of the Amendments say, "Thou shalt have the right to privacy."

 

Weeelllll.....

The Roe Court balanced the interest of the State in the protection of its future citizens with the mother's right, essentially, to be left alone, to be free of government interference in the most intimate areas of her personal life.

The right to be left alone isn't specifically mentioned in the constitution but the constitution DOES list a right or two that, according to the Roe Court, stem from this sort of Ur-right to be free of government interference in one's private life.

It's been a LONG while since I read the case but IIRC the Court looked at the 4th amendment right to be free of unreasonable searches and seizures and I seem to recall, though maybe in another context, that things like freedom of religion, assembly and expression figured in there some where.

The case isn't easy reading nor is it a particularly illuminating example of Supreme Court jurisprudence but it IS readily available online.

Speaking generally, the term "penumbra" does have a technical meaning in jurisprudence, though not in daily law work. It means cases that the law as written doesn't exactly apply to but should if the system is to be self consistent.

A classic example of penumbra thinking is an ordinance forbidding vehicles from being driven in a city park, Now, a "vehicle" plainly incudes an automobile or truck but what about a moped? Or a bicycle? or a unicycle? or a skateboard?

In theory, a Court will look to the "constructive intent" of the ordinance to determine which of these wheeled conveyences is a "vehicle" for the purpose of the ordinance.

Penumbras are particularly in evidence when the subject being regulated (or not) didn't exist at the time the ordinance was passed.

So what the Court is really trying to do is extend existing "plain" law to cover novel situations and do so in a way that avoids outright judicial legislation but still gives effect to the intent of the legislature.

It's a tricky business, at best.

 

Fishing, Nosborne?

 

Nosborne,

Thanks for the explanation of jurisprudential penumbras.
It was only after I had already hit the "Send" button that I realized that the penumbra question addressed your post while the concession that nowhere does the Constitution explicitly say, "Thou shalt have the right to privacy" was a concession to little fauss's post.

 

I just reread Roe v. Wade and I was gratified to see that my memory (for some things) is as reliable as ever. The Court's reasoning was indeed more or less as I described it.

I had forgotten then-Justice Rehnquist's rather pedantic and technical dissent; he WAS technically right but applying his reasoning would have served only to keep the Court from ever considering abortion rights. Procedure shouldn't act as an absolute bar to a valid claim for relief.

Part of Justice Rehnquist's dissent, though, wasn't technical at all and I wish that the majority had paid closer attention to it. Rehnquist states rather plainly that the Roe opinion is much too broad for the case presented to the Court for adjudication. He argues, with considerable weight, IMHO, that the majority opinion crossed the line between adjudication and legislation with its bright line trimesters.

I can't help it; I think he was correct. The Court could have, and should have, contented itself with striking down the Texas statute as unconstitutional and left it to the Texas legislature to craft a replacement.

 

Of course the Fourth Amendment protects privacy rights, as does the First in some sense, and the Third as well (don't see that last eferred to much, do you?)

But my argument is not at all that the Founding Fathers didn't carve out a few specific privacy rights; my point is that you cannot get from a few specific rights to the creation of an all-encompassing general right.

To wit: when we visit friends and I tell my children: "You may go into the kid's bedroom or the den to play", they know full blasted well that that does not give them carte blanche to go anywhere they please, including a hunting expedition through the parent's underwear drawer. It's too bad that a few justices in Griswold and Roe were not as grounded in common sense as the average kindergartner.

As for your Fourth Amendment analysis, I find it unique and interesting, but all together outlandish. The Fourth Amendment does not invalidate criminal laws per se, it only makes a statement about how evidence of the crimes is to be obtained--nothing more.

If the Fourth Amendment criminal statute angle is the one that guided the justices, then I'm to assume that all that need be done for the state to prevent an abortion and not to run afoul of the Fourth is that the policeman present evidence that an abortion is about to occur to a magistrate, the magistrate review and issue a search warrant, then the officer proceed with the search and arrest. The Fourth Amendment prevents unreasonable searches and seizures, and "unreasonable" has been defined in various ways, but it's always reasonable if a neutral magistrate is presented with sufficient evidence of a crime by the officer to issue a search warrant, and that evidence was not improperly obtained (i.e.: "fruits").

 

We agree on something!

 

Yes, it's quite tricky. It means essentially that the judges are about to legistalte from the bench and decide whatever they please--law be darned!

I love you Osborne!

 

Why shouldn’t it always be up to elected state legislatures to craft abortion statutes? I see no reason why state lawmakers should be prevented from dealing with abortion in accordance with the wishes of their constituents. It is unfortunate that a handful of unelected judges, via Roe and Casey, have prevented states from addressing/regulating/banning abortion as they see fit.

It is also very sad that the Supreme Court can invent non existent privacy/abortion rights, while just about ignoring the very second amendment. Currently, women have a right to murder their children, but law abiding citizens of Illinois, Wisconsin, Maryland, New Jersey, DC, and a few others can barely (if ever) exercise their right to keep arms, let alone bear them. Marriages and drivers licenses are recognized interstate via full faith and credit, but gun permits are not?

Anyway, as for the nomination: I was really pulling for Luttig. I just don’t know what to make of Roberts. Aside from two contradictory statements regarding abortion, he has never really addressed the issue. And, so far, I can’t seem to figure out if he has addressed any affirmative action and/or 2nd amendment issues. For this reason, I am inclined to agree with Ann Coulter. I do hope Roberts proves to be a tough pro life conservative, though. Time will tell, I suppose.

For anyone interested, below are shortened versions (from Casenote Legal Briefs) of the Rehnquist and Scalia dissents in Planned Parenthood v. Casey. I personally hope that Roberts takes a similar position. Then, we could call Rehnquist, Scalia, Thomas, and Roberts the new four horsemen.

Rehnquist, C.J. dissenting: Roe was wrongly decided, has led to a confusing body of law, and should be overturned. The Court's decision, replacing Roe's strict scrutiny standard and trimester framework with a new, unworkable undue burden test, cannot be justified by stare decisis. Authentic principles of stare decisis do not require erroneous decisions to be maintained. The Court's integrity is enhanced when it repudiates wrong decisions. Americans have grown accustomed to Roe, but that should not prevent the Court from correcting a wrong decision. The Fourteenth Amendment concept of liberty does not incorporate any all-encompassing right of privacy. Unlike marriage, procreation, and contraception, abortion terminates potential life and must be analyzed differently. Historic traditions of the American people, critical to an understanding of fundamental rights, do not support a right to abortion. A woman's interest in having an abortion is liberty protected by due process, but states may regulate abortion in ways rationally related to a legitimate state interest. All provisions of the Pennsylvania law do so and are constitutional. The husband-notification requirement is reasonably related to promoting state interests in protecting the husband's interests, potential life, and the integrity of marriage.

Scalia, J. dissenting: The limits on abortion should be decided democratically. The Constitution is silent on abortion, and American traditions have allowed it to be proscribed. Applying the rational basis test, the Pennsylvania law should be upheld in its entirety. Roe was wrongly decided. It begged the question by assuming a fetus is merely potential human life. The whole argument of abortion opponents is that the state seeks to protect human life. Roe also failed to produce a settled body of law. Roe did not resolve the deeply divisive issue of abortion. It made compromise impossible and elevated the issue to a national level where it has proven infinitely more difficult to resolve. Here, the Court claims to rely on stare decisis but throws out Roe's trimester framework. The new undue burden standard is meaningless in application, giving a district judge freedom to strike down almost any abortion restriction he does not like. The Court's suggestion that public opposition to an erroneous decision mitigates against overturning it is appalling.

 

A trip to Massachuestts or Canada perhaps in your future?

 

Has John G. Roberts been confirmed yet? If not, will his confirmation proceedings go smoothly? Or will we have some good fun happy filibusters, high tech lynchings, and other sorts of fights on our hands?