Scalia: Not A Conservative Jurist After All

By Jesse Taylor
Thursday, October 2, 2008 3:01 EDT
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imageAfter Sarah Palin declared the existence a Constitutional right to privacy, conservatives were left with one of two options: do you stick with the consistent (if wrong) judicial philosophy of Antonin Scalia, Clarence Thomas and Robert Bork (among others) that determines a right to privacy as so much manufactured nonsense, or do you completely reverse course on over three decades of conservative talking points to make a reflexively counterproductive defense of Palin’s obviously uninformed comment?

Why the fuck am I asking?

Palin and Privacy [Ramesh Ponnuru]

Those excerpts from Couric’s interviews give me more concerns about Biden than Palin. He seems to be under the impression that there’s a “liberty clause” in the Fourteenth Amendment (he has talked about it in Supreme Court confirmation hearings too). He misdescribes what Roe held. He seems to believe that Roe has been good for social peace and that this alleged fact justifies it as constitutional law.

Palin, meanwhile, is asked a somewhat oddly phrased question by Couric, and says, reasonably enough, that the Constitution protects a right to privacy. Now it is certainly and obviously true that the Constitution protects privacy: What else do the Third and Fourth Amendments protect, for example? There is nothing incompatible with either a pro-life point of view or originalism with saying that the Constitution protects privacy.

Clarence Thomas:

For example, in the Texas sodomy case, Thomas wrote, “…I ‘can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy,’…”

Antonin Scalia, in Lawrence v. Texas:

JIM LEHRER: What did Justice Scalia say about the right to privacy?

JAN CRAWFORD GREENBURG: Well, Justice Scalia said that this was certainly nowhere in the Constitution, and that this [sodomy] law certainly was constitutional in his view.

Robert Bork:

Bork’s major point is that Douglas did not derive the right to privacy from some pre-existing right or from natural law, but merely created a new right to privacy with no foundation in the Constitution or Bill of Rights. Bork is correct that the word “privacy” never appears in those documents. Douglas had argued, however, that the right to privacy could be seen to be based on guarantees from the First, Third, Fourth, Fifth, and Ninth Amendments. Taken together, the protections afforded by these Amendments showed that a basic zone of privacy was protected for citizens, and that it covered their ability to make personal decisions about their home and family life. In contrast, Bork argues i) that none of the Amendments cited covered the case before the Court, ii) that the Supreme Court never articulated or clarified what the right to privacy was or how far it extended, and he charges iii) that the privacy right merely protected what a majority of justices personally wanted it to cover. In sum, he accuses Douglas and the Court majority of inventing a new right, and thus overstepping their bounds as judges by making new law, not interpreting the law. Bork’s views continue to be defended by others, in politics and in the popular press.

Ponnoru gets bonus irony points for using the rationale behind Griswold v. Connecticut to make a conservative case for…well, anything, really. Why have Republicans been nominating so many anti-conservative justices?

Jesse Taylor
Jesse Taylor
Jesse Taylor is an attorney and blogger from the great state of Ohio. He founded Pandagon in July, 2002, and has also served on the campaign and in the administration of former Ohio Governor Ted Strickland. He focuses on politics, race, law and pop culture, as well as the odd personal digression when the mood strikes.
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