The Supreme Court’s Private Life

New York Times, September 18, 2005.

WHEN John Roberts, President Bush’s nominee for chief justice of the Supreme Court, told the Senate Judiciary Committee last week that “the right to privacy is protected under the Constitution in various ways,” some saw this as contradicting a memo he wrote while serving in the Reagan administration in which he referred to the “so-called ‘right to privacy.”‘ The confusion may stem less from Judge Roberts’s lack of candor than from the political and legal morass brought on by a string of dubious decisions by the Supreme Court over the last 40 years.

While the word “privacy” does not appear in the Constitution, this does not mean privacy rights are not protected. Certain provisions plainly protect people against governmental intrusion, like the Fourth Amendment’s ban on “unreasonable searches and seizures.” And these provisions have implications that extend beyond what the framers could possibly have envisioned; by logical extension, the Fourth Amendment protects people’s electronic files just as it protected the parchment letters of the late 18th century.

Nearly everyone recognizes these privacy protections. Where dispute breaks out is on the question of whether the Constitution contains a generalized right to privacy of the type used by judges to invalidate laws prohibiting contraception, sodomy and abortion….

New York Times