[Third Round of Questioning by Senator Grassley]
SENATOR GRASSLEY: Thank you, Mr. Chairman.
Judge Thomas, if I could go back to an area that we discussed yesterday, the privacy area, and set a little background by reminding you, in response to the chairman's question, you agreed that "single people have the same right of privacy as married people on the issue of procreation." And you agreed with the chairman that "the privacy right of an individual is fundamental."
Yesterday I tried to find out parameters on the constitutional right to privacy, and let me make very clear I don't expect you to prejudge any case. But if I could, I would like to get an idea of the framework of the test to be applied in analyzing privacy rights. You have endorsed the rationale in the holding of Eisenstadt. Yesterday Senator Simpson and I raised the Bowers decision.
Now, the dissenters in Bowers found that Eisenstadt compelled the opposite results from the outcome that the majority reached. So the four people on the dissent were doing it on the basis of Eisenstadt to recognize a broad and sweeping constitutionally protected privacy right. So I hope that this puts it in a context where you understand my concerns and why I am bringing this up again.
I wonder if your endorsement of Eisenstadt could lead you to the same conclusions that the Bowers dissenters reached.
JUDGE THOMAS: Senator, I don't think that the majority in Bowers in any way felt compelled to undercut Eisenstadt in order to reach the conclusion that they did. Again, I have not gone back and re- read the majority opinion in that case, but I believe what the majority did is simply say that in looking at our history and tradition, the fundamental right of privacy did not include homosexual sodomy. I believe that was Justice White. But the point is that it left intact the holding in Eisenstadt that the right of privacy attached to the individual.
SENATOR GRASSLEY: Okay. Well, that helps me a little better and makes me feel better from the answer that you gave yesterday.
You agree that the right of privacy is not absolute; indeed, protection is derived from the Liberty Clause of the Fourteenth Amendment as part of the Constitution. And so basically I guess then in conclusion--and this is the only question I have of you in this round--I would like to read for you a portion of the majority opinion in the Bowers decision, and it is a few sentences long so I hope I read it carefully for you.
"The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That is to say"--"that is so"--pardon me. Let me quote again.
"That this is so was painfully demonstrated by the face-off between executive and the Court in the 1930's which resulted in a repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise"--and this is the last sentence. "Otherwise, the judiciary necessarily takes to itself further authority to govern the country without express constitutional authority."
So I think you probably have stated already, but as this is sort of a summary, can you agree that this expression of judicial restraint is an important consideration in determining the parameters of the right of privacy?
JUDGE THOMAS: Senator, I think that in areas in which a court or a judge is adjudicating or interpreting the more open-ended provision of the Constitution that judges should restrain themselves from imposing their personal views in the Constitution; that their adjudication must be rooted in something other than their personal opinion. And as I have indicated and the Court has attempted to do, attempted to root the interpretation or analysis in those areas in history and tradition of this country, the liberty component of the Due Process Clause, and I think that that is an appropriate restraint on judges.
SENATOR GRASSLEY: Does what you just said, then, is that your way of telling me that you agree with that, those statements?
JUDGE THOMAS: Yes.
SENATOR GRASSLEY: Thank you, Mr. Chairman, and also thanks to my colleagues for the courtesy of going out of order.
SENATOR BIDEN: This may be an appropriate time to take a break. We will break until 3:30.
[Recess.]