SCOTUS Wire

The new documents disclosed by the archive that reflect Roberts’ skeptical views regarding a “fundamental” right to privacy include a lengthy article on judicial restraint that he apparently drafted for publication in a journal of the American Bar Association under the name of then-Attorney General William French Smith, his boss.

The article approvingly quoted from a dissenting opinion by Justice Hugo Black in a 1965 court decision, in which the majority held that a Connecticut law forbidding the use of contraceptives was unconstitutional. Black’s opinion, as cited in the draft, complained that the court had used “a loose, flexible, uncontrolled standard for holding laws unconstitutional.” The draft article said that “the broad range of rights which are now alleged to be ‘fundamental’ by litigants, with only the most tenuous connection the to Constitution, bears ample witness to the dangers of this doctrine.”

The draft released from Roberts’s files at the archive does not have his name on it, but a memo to Roberts from Bruce Fein, who then worked in the Justice Department, offers suggested changes on “your draft.” Fein said in an interview yesterday that “my judgment is yes, that John wrote it.”

A second memo, sent by Roberts to the attorney general on Dec. 11, 1981, summarized a lecture six years earlier by then- Solicitor General Erwin N. Griswold at Washington and Lee University, which touched on the same theme. Griswold’s lecture, Roberts said, “devotes a section to the so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade.”

The words “so-called” do not appear in Griswold’s lecture. But Roberts drafted a letter to Griswold, signed by Smith, saying he was cheered that Griswold made “many of the same points” that the administration had about these matters.