- The Washington Times - Saturday, September 3, 2005

Privacy is something, like the Ten Commandments, that Americans revere without feeling a need to observe.

We are not terribly insistent on our privacy: Sit down next to a perfect stranger on an airplane, and you may get a report on her miserable childhood before the wheels are up. Nor do we get hung up on the privacy of others, judging from all the magazines we buy to learn intimate secrets of the stars.

But it’s a bad idea to be seen as the sworn enemy of privacy, just as it’s unwise to publicly disparage what God said to Moses. So in the fight over John Roberts’ Supreme Court nomination, opponents try to cast him as Robert Bork with fashion sense — the sort who would burst into your bedroom, rifle your dresser and ask what you’re doing under the sheets.

The best example is a TV ad by NARAL Pro-Choice America. It opens with “Privacy” emblazoned across the screen, and proceeds to suggest if Judge Roberts has his way the only place you’ll find it is in the dictionary.

“John Roberts dismisses one of our established liberties as the ‘so-called right to privacy,’ ” says the narrator, as we see an attractive couple holding hands. “Roberts’ legal record raises questions on whether he accepts the right to privacy.” Subliminal message: If Roberts gets to the Supreme Court, couples will not be allowed to hold hands.

To the average person, the right to privacy may mean any number of things. To NARAL, though, it denotes something more specific: the unrestricted right to abortion. Pro-choice groups, however, know this is the least popular prerogative in the alleged zone of privacy. So to defeat Judge Roberts he must be depicted as the enemy of privacy in all forms.

As interpreted by the Supreme Court, the safeguards for the right to be left alone include a range of matters. At one end are those aspects clearly covered by explicit constitutional guarantees, such as those barring unreasonable searches, forced self-incrimination and quartering soldiers.

Even his worst enemies don’t expect Judge Roberts to obliterate the Fifth Amendment or let the Marines take over your guest room. When it comes to police searches, the court has largely resolved most of the important issues and is not likely to reopen them.

At the other end of the spectrum are matters the Constitution doesn’t mention. The weakest basis is for abortion rights, which the Supreme Court shoehorned into the privacy sphere like someone cramming 10 pounds of potatoes into a 5-pound bag. No one knows if, 32 years later, Judge Roberts would vote to overturn that precedent.

But to say he might reject the weakest case covered by the privacy doctrine does not make him the enemy of privacy, any more than all of Ashlee Simpson’s detractors are hostile to music. He did once refer to the “so-called right to privacy,” but that spoken in reference to abortion, that may have disparaged the unreasonable scope of the right, not its essence.

Even were he skeptical about the concept, Judge Roberts has as much chance of rolling back the court’s crucial decisions as he has of winning the Miss America pageant. The first big privacy ruling, in 1965, said Connecticut could not criminalize married couples’ use of contraceptives.

The court’s effort to explain its decision bordered on the comical. Justice William O. Douglas claimed to have located this new right to privacy not in specific constitutional guarantees but in “penumbras, formed by emanations from those guarantees.” If that sounds like pure vapor, that’s because it is.

But even experts who lament the court’s reasoning aren’t necessarily hostile to the result. George Mason University law professor Ronald Rotunda, a Bush administration veteran, writes the decision was “correct in finding that the values of privacy… had long been part of American legal philosophy.”

If you think Judge Roberts intends to let states ban the sale of contraceptives, I have some Florida swampland you might want to buy. For that matter, it’s hard to picture even a more conservative Supreme Court overruling the 2003 decision that struck down laws against homosexual sodomy. Those decisions, which match a durable public consensus, are here to stay.

Despite what NARAL says, Judge Roberts poses no discernible threat to the sort of privacy most of us cherish. With him on the court, you can expect to keep doing whatever you want behind closed doors. And in public, feel free to hold hands.

Steve Chapman is a nationally syndicated columnist.

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