2 Aug 2012
You may have seen our recent post of the riveting video of Justice Scalia’s appearance on Fox News. I’m not going to get started on what totally sucks about a Supreme Court Justice going out in the press and opining on the issues of the day, many of which are likely to come before him at some point very soon. I have faith that you all are smart enough to put that together. But let’s talk for a minute about what totally sucks about what he actually said.
I’m not a lawyer, nor a constitutional scholar. I make no claims to being either. I am just a Vagina-American that knows how to read and draw some basic conclusions about justice in America. This country has a problem that we as women are struggling with right now with regard to the draconian, invasive laws that mostly right-wing legislators are pushing on us. The idea of a woman making decisions about her private reproductive life and health without their knowledge and interference has suddenly become a lightning rod again. When taken alongside other legislation being pushed and/or passed, like CISPA and so on, it spells trouble for women, surely, but for everyone else too, because it challenges the very notion of Americans’ having a right to privacy.
Scalia decided to run his mouth on, among other things, the subject of Griswold v. Connecticut. For those who may not know, this was a 1965 Supreme Court decision which struck down a Connecticut law banning birth control, even for married couples. The Court’s decision was 7-2, and the majority cited a number of different rationales for striking the law down including its unenforceability (would they send the brute squad to search the homes of married couples to see if they had any pills stashed under the floorboards?), but the primary reason was that the Connecticut law violated “marital privacy.” But apparently, the 7-2 majority decided wrongly in this case. Did you know that? I didn’t.
The reason Justice Scalia gives for why this decision was terribly wrong is that the Constitution does not explicitly enumerate a right to privacy, THEREFORE, WE DO NOT HAVE ONE. Let that sink in for a minute. Now, he is technically correct. The Constitution enumerates some very specific things about very specific privacies; for example, you do not have to quarter a British solider in your house. You do not have to be subjected to unreasonable search & seizure. Outside the confines of the constitution, most states have privacy laws concerning your healthcare records and the like. However, nowhere in the Constitution does there exist a specifically worded general right to privacy. That’s true. The Constitution also doesn’t specifically enumerate in so many words that we have the right to breathe air. Honestly, if your home is your castle and your body is your temple, doesn’t it sort of defy decency that the right to privacy is not constitutionally protected?
Apparently, more than a few Justices had decided as much, and had done so for many years prior to Griswold. The Griswold decision that people had a right to marital privacy didn’t come from nowhere. Why? Because for one thing, the 9th Amendment states that the “enumeration of certain rights” in the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people.” Now, as with certain other Amendments (the second, for example) the language leaves gaps large enough to drive a semi through, but there were a number of judges (including Justice Goldberg in his Griswold concurrence) who had in a number of cases many years prior to Griswold, decided that this part of the 9th Amendment could and should be read broadly enough protect privacy. You know, that whole human decency thing.
Not only that but for at least 40 years before Griswold, judges had also been using the due process clause in the 14th Amendment to protect privacy rights, since a 1920 case called Meyer v. Nebraska, in which the court determined that the state could not infringe on the private academic and religious education decisions a family wanted to make regarding their child. What we’re getting at here is, there’s lots of precedent for the idea that the Constitution can be read in order to provide for the basic human right of privacy. Judges and lawyers like precedent, because it makes them feel that they aren’t biased and just making shit up.
The thing is, to some extent, they are. People would like to live in the magical world of John Roberts’ imagining, where Justices are umpires, calling balls and strikes, delivering completely unbiased rulings based on the letter and spirit of the law, which are always perfectly concurrent. Except, they aren’t. The law is often vague, sometimes intentionally so, in order to allow for interpretation so that it can broadly applied to a variety of individual situations. And as some who claim to be “originalists” would even admit, applying only the letter of the law will sometimes yield a result that is unfair even if it is technically just. George Will (the guy you call when you want to hear something stupid said with excellent diction) once snidely remarked that the Earl Warren Court that was overly concerned with whether the law was “nice.” But Judges have been doing this for ages, ruling in accordance with their own attitudes and biases, and with a string of decisions both before and after Griswold they appear to have done so with distinction when it comes to the issue of personal privacy. It is not, nor should it be, a partisan issue. There are nearly 100 years of precedent to justify the idea that a right to privacy exists because so many courts under so many different circumstances have upheld it. At this point, the much-maligned judicial activism would seem to come in the form of overturning that precedent.
Again, the trend in many of the laws that Congress is pushing, from women’s rights issues to internet privacy (SOPA, PIPA, CISPA), seems to be trying to strip that away legislatively. And Justice Scalia has now sent a message to the troops that he’s there to defend that effort if and when those pieces of garbage legislation come to be challenged before the Supreme Court.