Given the chance, will enough of Justice Clarence Thomas’ colleagues join him in a radical scaling back of Americans’ right to privacy, asks Michael Lindenberger, the Houston Chronicle's deputy opinion editor.
, which granted adults the right to marital privacy and laid the groundwork for Roe v. Wade.
Alito doesn’t specifically say in his recently leaked draft, as Thomas did 19 years ago, that the right to privacy does not exist because the word cannot be found in the text of the Constitution.His reading — critics say misreading — of Supreme Court precedents convinces him two things are required before a court can establish a right that is not mentioned in the Constitution. The majority did just that when it first recognized a right to abortion.
Andrew Koppelman, the John Paul Stevens Professor of Law at Chicago’s Northwestern University Pritzker School of Law, said in an interview that by emphasizing that unenumerated rights must meet both parts of that two-pronged test — when previous courts have far more often seen it as a case of either/or — Alito has provided a clear road map for attacks on gay marriage, the right to contraception and other fundamental rights not specified in the Constitution.
So what rights are protected? The answer lies in the 14th Amendment itself, which states in part: “nor shall any state deprive any person of life, liberty, or property, without due process of law.”, the unanimous decision in 1997 upholding the state’s criminal penalties for assisted suicide, Chief Justice William Rehnquist offered a partial list.
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