Justice Stevens and the so-called right to privacy

The following essay by Jamal Greene is part of our thirty-day series on John Paul Stevens.  Greene clerked for Justice Stevens during the 2006 Term, and is now a law professor at Columbia University.

In the months leading up to his confirmation hearing, news emerged that in 1981, as a fledgling lawyer in the Reagan Justice Department, John Roberts had referred to the “so-called” right to privacy. This was thought to be code for opposition to Roe v. Wade, and Roberts’s views on abortion rights were tested early and often; indeed, Senator Arlen Specter, then the Republican chair of the Senate Judiciary Committee and a supporter of abortion rights, began the hearing by confronting Roberts with the memo.

The phrase “so-called right to privacy” is not original to Roberts. So far as I am aware, its first juridical use was in Roberson v. Rochester Folding Box Co., a 1902 New York Court of Appeals case involving allegedly tortious appropriation of the (unsuccessful) plaintiff’s likeness in order to sell flour. Judge Alton Parker referred to the then-nascent privacy tort, which was birthed in a now-famous 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. Judge Parker was perhaps even less impressed than the current Chief Justice:

The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon . . . .

Roberts was not, of course, referring to the privacy tort but rather to the constitutional right of privacy discussed, among other places, in Roe. But Roberts is also not the first to use the phrase in reference to the constitutional right. In 1975, the U.S. Court of Appeals for the Seventh Circuit had to decide whether a father had a right to be present at the birth of his child in a public hospital’s delivery room. In rejecting the father’s constitutional claim, the two-to-one majority opinion read: “We hold that the so-called right of marital privacy does not include the right of either spouse to have the husband present in the delivery room of a public hospital which, for medical reasons, has adopted a rule requiring his exclusion.”

The case was Fitzgerald v. Porter Memorial Hospital and the author of the opinion was John Paul Stevens.

If nothing else, then-Judge Stevens’ opinion in Fitzgerald tells us that times have changed. Imagine, if you can, a Republican nominee to the Supreme Court (by an unelected President, no less) facing a filibuster-proof Democratic majority in the Senate who, two months before his nomination, had called constitutional privacy a “so-called” right in a judicial opinion. Imagine, moreover, that Roe was not even arguably a “super precedent,” but was less than three years old at the time. This was the situation in November 1975, when Justice Stevens was nominated, and he was confirmed by a vote of ninety-eight to zero. Times have changed indeed.

What Fitzgerald does not tell us is that Justice Stevens himself has changed. For him, the “so-called right to privacy” was not the epithet it has since become among many conservatives. Instead, it was more a case of tough love. “It is somewhat unfortunate,” he wrote in Fitzgerald, “that claims of this kind tend to be classified as assertions of a right to privacy,” as they had nothing to do with “protection from unwarranted public comment, attention, or exploitation.” He continued:

The character of the Court’s language in these [privacy] cases brings to mind the origins of the American heritage of freedom—the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases.

For Justice Stevens, the right to privacy was not a “so-called” one because the specific rights it protected were of less than constitutional dimension. Hardly. It earned its label, rather, because those specific rights were so significant, so important to the dignity of a free people, that “privacy” was an inadequate umbrella. Like Justice Harlan before him, Justice Stevens has long believed that the appropriate doctrinal home for these rights was not the awkward right to privacy, but the right to liberty protected directly by the Due Process Clause (which he calls the “liberty clause”) of the Fifth and Fourteenth Amendments.

When Justice Stevens joined the Supreme Court in December 1975, however, protection for abortion, contraceptive, and familial rights was still spoken of in “privacy” terms. And when, in 1986, Michael Hardwick sought to extend that line of doctrine to protect same-sex sexual intimacy in Bowers v. Hardwick, both Justice White’s majority opinion rejecting the claim and Justice Blackmun’s dissenting opinion supporting it spoke in terms of the right to privacy. Justice Stevens dissented separately. Quoting from his opinion in Fitzgerald, he wrote,

In consideration of claims of this kind, the Court has emphasized the individual interest in privacy, but its decisions have actually been animated by an even more fundamental concern. . . . The essential ‘liberty’ that animated the development of the law in cases like Griswold [v. Connecticut], Eisenstadt [v. Baird], and Carey [v. Population Services International] surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral.

A separate writing disputing what most viewed as settled doctrine—the privacy formulation—could easily be interpreted as a further example of Justice Stevens the impractical maverick. But that would be a mistake. Instead, his Bowers opinion, and the Fitzgerald opinion that preceded it, are among the finest examples of Stevens the common-sense jurist. One need only think of his frequent frustration with tiers-of-scrutiny analysis in affirmative action cases for confirmation of Justice Stevens’ view that doctrinal formulations are only as useful as their power to produce well-reasoned opinions and sensible constitutional decisions. A line of “privacy” doctrine that fails to capture the liberty interests at stake is susceptible to narrow-minded opinions like that of Justice White in Bowers, who denied that the constitutional privacy cases had anything to do with “homosexual sodomy.”

When the Court finally overruled Bowers in Lawrence v. Texas, Justice Kennedy’s majority opinion pointedly did not mention the constitutional right to privacy. It instead grounded the right at issue in the “liberty of the person both in its spatial and more transcendent dimensions.” The Kennedy opinion paid direct homage to Justice Stevens: “Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.” Without writing a single significant Supreme Court majority opinion in the area of sexual or reproductive freedom, Justice Stevens revolutionized the doctrine in this area.

There has been much talk about Justice Stevens’ ability to influence Justice Kennedy, and whether and to what degree it will be missed if and when Elena Kagan replaces him on the Court. I believe Justice Stevens’ influence on Justice Kennedy has been overstated insofar as it has referred to backroom conversation or strategic opinion assignment. But it has been understated insofar as it has referred, to paraphrase the old chestnut from Skidmore v. Swift & Co., to a body of experience and informed judgment to which his colleagues may properly resort for guidance. Justice Stevens’ opinions have long been characterized by their power to persuade, even where they have not always controlled. Their intellectual honesty will be his legacy.