Senator BIDEN. …. If you believe that implicit in the 9th amendment is a recognition of a right called the right of privacy— not to what extent it applies, but that there is such a thing as the right to privacy.
Judge SCALIA. I think that’s in effect asking me to rule on cases. I can say that the Supreme Court has held that there is such a thing as a right of privacy. But they haven’t tied it to the 9th amendment. As far as I know, there is no Supreme Court holding that rests any right exclusively on the 9th amendment. They may include the 9th in a litany of amendments from which various penumbras emanate, and the 9th was among them.
Senator BIDEN. DO you believe that there is such a thing as a constitutional right to privacy, not delineating whether, for example, the right to terminate a pregnancy relates to the right to privacy or the right to engage in homosexual activities in your home is a right to privacy, or the right to use contraceptives in your home is a right—but, in a philosophic sense, is there such a thing as a constitutionally protected right to privacy?
Judge SCALIA. I don’t think I could answer that, Senator, without violating the line I’ve tried to hold.
Senator BIDEN. Well, the fact that you believe in the right to privacy doesn’t mean that a case before you in fact rises to the level of being protected by that right. I think you are being a little bit disingenuous with me here. If in fact you conclude that there is an existing right to privacy that in no way predisposes you to have to rule one way or the other about whether or not a claimed right is encompassed by the provision.
Judge SCALIA. Senator, I beg to differ. There have been scholarly criticisms of the whole notion of right to privacy.
Senator BIDEN. Oh, I agree.
Judge SCALIA. And it’s not at all inconceivable that that criticism will be reflected in a brief before the Supreme Court, and I don’t…
Judge SCALIA. It’s very hard to answer—you began this line of questioning by answering me never mind what the right of privacy consists of. I can’t answer that question without knowing what you mean by the right of privacy.
Senator BIDEN. True, you can acknowledge whether or not you believe there is in fact—let’s just start over again, clean the slate. Do you believe that Americans as a whole believe that that they have inherent right to privacy—that they think they have a right to privacy? Do you think that is a deeply and profoundly held belief by American society, whether it’s found in the Constitution or found in natural law or found in their Bible or found in the Talmud? As a society, do you have any doubt that Americans believe it?
Judge SCALIA. NO, I’ll give you that, Senator.
Senator BIDEN. Good man, I tell you we’re getting there—all right.
Senator BIDEN. Second, if in fact—well, I don’t have to go any further actually, because in fact it seems to me that in some form or other there is a constitutionally protected right of privacy. What that means remains to be seen, whether it means the right to engage in homosexual activity in one’s bedroom or anything else remains—I’m not going to ask you to comment on that.
But let me—I guess my time is—I know my time is up—but let me pursue this one step further, if I may. When I look at your musings—and I don’t mean that in a derogatory way, because I love to read what you’ve written, I love the way you go about it, I wish I had had you in class. I’m probably too old to have had you in class, but you’re the kind of guy that I would have liked to have had in class. I could have gotten by with you because we could have talked about philosophy and as long as you didn’t ask me what the case stood for, I’d be all right.
But when I tie your musings on original meaning and original intent, where I must admit I put you more in the school of the original-intent fellows than I do in the living Constitution area, I begin to be concerned. … Now the irony of all ironies is that the people who are concerned about you, some who are concerned about you, women’s groups—prochoice women’s groups who are concerned about you—they worry you will use that rationale to overturn Roe v. Wade.