by Kagro X
Last month, Plutonium Page asked what the replacement of Justice Sandra Day O'Connor might mean not just for issues of abortion, but also of birth control. Specifically, she asked about Griswold, noting that the right to privacy recognized in that case laid the foundation upon which Roe v. Wade was later decided.
In the discussion that followed, it was generally agreed that most people felt that O'Connor's departure left Roe at risk, but not Griswold. Abortion, most reason, is one thing. But nobody would stand for criminalizing birth control. But I was not so sure:
Those who have doubts about whether or not Griswold would come under direct assault come from a place we'd all like to think makes good sense. But having received by legal education from the neo-con sympathizing, law & economics-trained, Federalist Society professors, I can tell you that when the case is discussed at the George Mason University School of Law, the "poison word" isn't "abortion." It's "penumbra."
What I actually should have said, of course, is that when that line of cases is discussed, because Griswold didn't deal with abortion.
But now, the news:
Memos U.S. Supreme Court nominee John G. Roberts wrote two decades ago questioning whether there is a constitutional right to privacy will likely draw scrutiny at his Senate confirmation hearings.
In a Dec. 11, 1981, memo to his boss, Attorney General William French Smith, Roberts referred to a comment by former Solicitor General Erwin Griswold that derided the ``so-called `right to privacy''' that formed the basis of the Supreme Court's 1973 decision in Roe v. Wade that legalized abortion nationwide.
Griswold, also a former dean of Harvard Law School, was ``arguing as we have that such an amorphous right is not to be found in the Constitution,'' Roberts wrote in the memo, among papers released by the National Archives and Records Administration in advance of his Senate confirmation hearings set to begin Sept. 6.
My recollection of my own law school introduction to Griswold was, as I said, that the "penumbra" language upon which the "right to privacy" was built was considered to be literally laugh-out-loud material. Now, that same brand of cocky, ultra-aggressive conservatism, which is also much in evidence in Roberts' early memos, is preparing a perch for itself on the Supreme Court. And while it may not be birth control that he has in his sights, can anyone think of a less opportune moment than this one -- in the thick of the Global War/Struggle on/Against Terror/Violent Extremism, and living under the still-untested boundaries of the USA PATRIOT Act -- to reopen the question of whether or not the right to privacy even exists?