Documents released this week by the National Archives show that Judge John G. Roberts Jr., President Bush’s nominee to the U.S. Supreme Court, expressed strong objections to the extent that the high court has recognized a citizen’s fundamental right to privacy.

According to the Washington Post, the documents show that Roberts drafted an article for then Attorney General William French Smith in 1981, which revealed Roberts’ skepticism of the Constitution’s so-called “right to privacy” doctrine. The court has invoked this doctrine in a number of landmark cases, including the 2003 decision in Lawrence vs. Texas, which overturned state sodomy laws.

“[T]he broad range of rights which are now alleged to be ‘fundamental’ by litigants, with only the most tenuous connection to the constitution, bears ample witness to the dangers of this doctrine,” Roberts wrote in the draft article, according to the Post.

Roberts added a quote to the draft from a dissenting opinion by former Supreme Court Justice Hugo Black in a 1965 decision, in which Black criticized the majority on the court for overturning a Connecticut law banning the use of contraceptives, the Post reported. The majority opinion overturning the law used “a loose, flexible, uncontrolled standard for holding laws unconstitutional,” Roberts approvingly quoted Black as saying.

The newly emerging information on Roberts’ judicial views is being analyzed by gay rights attorneys, who have expressed concern about Roberts’ possible handling of a number of gay rights cases that could come before the Supreme Court in the next several years.

If confirmed by the Senate in the fall, a gay-related military case would be one of the first cases Roberts is likely to consider as a new Supreme Court justice. The case, Fair vs. Rumsfeld, came to the high court when the Bush administration appealed a ruling last year by the Third Circuit Court of Appeals overturning the Solomon Amendment, a federal law calling for cutting off federal funds to universities that deny military recruiters access to campus facilities.

In the 1990s, a number of the nation’s elite universities barred military recruiters from their campuses on grounds that their presence would violate university policies of shunning employers that engage in discrimination, including sexual orientation discrimination.

The universities cited the military’s “Don’t Ask, Don’t Tell” policy of prohibiting gays from serving in the military unless they conceal their sexual orientation as the reason for their bans on military recruiters.

The universities backed down from this practice following Congress’ approval of the Solomon Amendment, out of fear that they would lose millions of dollars in federal funds. A consortium of universities challenged the constitutionality of the Solomon Amendment in a joint lawsuit in federal court. The Third Circuit’s decision to overturn the law is considered an important victory for gay activists, who hope to eventually overturn the “Don’t Ask, Don’t Tell” policy through litigation.

Challenges to “Don’t Ask, Don’t Tell” are among the next set of gay-related cases that could come before the Supreme Court in the near future. At least two lawsuits seeking to overturn the policy are pending, one filed by the Servicemembers Legal Defense Network in the First Circuit Court of Appeals and another by the national gay group Log Cabin Republicans in the Ninth Circuit Court of Appeals. The Ninth Circuit has already rejected a previous challenge to the “Don’t Ask, Don’t Tell” policy.

If the appeals courts overturn the policy, the Bush administration is expected to file an immediate appeal to the Supreme Court.

Roberts to enforce ‘settled law’
Some activists predict a challenge to one or more state laws banning gay marriage could also find its way to the Supreme Court’s docket. A suit challenging the federal Defense of Marriage Act, which denies federal benefits to married same-sex couples, could also come before the high court, gay rights attorneys have said.

Roberts was in his 20s at the time he expressed his critical views on constitutional privacy rights. He was an assistant to French Smith in the early years of the Reagan administration.

Some legal observers have questioned whether Roberts’ views have since moderated, more than 20 years later. In recent years, in his role as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Roberts has said he would respect and enforce “settled law,” including the 1973 decision of Roe vs. Wade, which legalized abortion.

Legal experts point out that the court used Roe and other privacy rights cases as a foundation for the Lawrence decision in 2003. Lawrence is considered one of the most important decisions in favor of gay civil rights. Written by Justice Anthony Kennedy and approved by a 6-3 margin, it recognizes that gay people have a fundamental right to privacy that can’t be denied by the government.

Gay rights attorneys have expressed concern that a decision by the high court to overturn Roe could lead to the eventual overturning of Lawrence.

Chai Feldblum, a Georgetown University Law School professor and gay rights attorney, said the emerging documents on Roberts’ work in the Reagan administration, and the administration of President George H.W. Bush, shed light on a judicial philosophy he is likely to apply to issues expected to come before the court in the future.

“What we see from the memos he wrote is his vision that the privacy provision in the Constitution should be limited,” said Feldblum. “He doesn’t strike me as someone who will have an expansive vision on privacy rights.”

“What is not clear is how this will play out in gay rights cases,” Feldblum said. “If he is conservative in not wanting to upset the existing applecart, he may not want to overturn Lawrence. But how he would apply Lawrence to something else — that is an unknown.”

Feldblum said the information that has emerged so far on Roberts’ record and views should no longer be dismissed as “tea leaves” that can’t be predictive of his current views.

“They represent his vision of the Constitution that I doubt would change over time,” she said. “They are core beliefs. He clearly believes these privacy rights guarantees should be given a narrow scope.”

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