Erin Miller writes:
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:
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