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In Search of a Conservative Vision of Constitutional Privacy: Two Case Studies from the Rehnquist Court

32 Pages Posted: 2 Aug 2006  

Mark Rahdert

Temple University - James E. Beasley School of Law


The Constitutional right of privacy posed particular difficulties for the Rehnquist court both because of the increasing divide between the liberal and conservative wings of the Court, but also from the conflicting views on privacy among the conservative justices. Much of the privacy jurisprudence of the Rehnquist Court reflected the tension between the conservative desire to acquiesce to the doctrine and possibly extend it certain areas, while simultaneously wishing to limit and even reject its application in others. As a result, the Rehnquist Court produced a wavering line of decisions that failed to establish a unifying theory. The lack of clarity in the Rehnquist Court's privacy jurisprudence raises questions about constitutional privacy's future in the 21st century.

This article investigates whether or not the right of privacy will carry much force in the Roberts Court and how the appointments of Chief Justice Roberts and Justice Alito will impact the future of the Constitutional right of privacy. This article predicts that the Roberts Court will continue to recognize the right of privacy, but with a distinctly more conservative cast, as foreshadowed by some of the leading privacy decisions of the Rehnquist years. The article examines two Rehnquist Court decisions, one by Chief Justice Rehnquist and one by Justice O'Connor, that may serve as potential models for the development of a conservatively doctrine of constitutional privacy in the Roberts Court.

This article uses the decisions in Washington v. Glucksberg and Troxel v. Granville to illustrate the main tenets of each approach and then blends them into a blueprint for a new, conservatively cast doctrine of constitutional privacy for the Roberts Court. The article then proposes six tentative principles for conservative privacy jurisprudence: 1) constitutionally protected privacy interests either derive directly from one of the existing enumerated guarantees or they represent instances of protected liberty under Due Process of the Fifth and Fourteenth Amendments, eliminating the concept of a freestanding right to privacy; 2) extensive use of judicial and legislative pedigrees in assessing the fundamentality of an asserted liberty interest; 3) comparative evaluation of legislative, individual, and judicial competence for decision-making regarding the asserted interest; 4) exercise of judicial restraint, based on the belief that the primary role of the judiciary in privacy matters is to correct outliers rather than to determine new interests or set new directions; 5) application of a flexible review, loosely based on the strict standards of review utilized by the Burger Court, allowing for a more custom-tailored judicial assessment; 6) the use of process to safeguard substantive interests. This projected approach is then compared to the recent decision in Gonzales v. Oregon, as a sample of the possible direction of the Roberts Court.

The right to privacy has important implications for all Americans, both liberal and conservative, and should continue to be protected by the Constitution. In the face of the possible choice between limited, conservative protection for privacy interests, and no recognition of a constitutional right to privacy at all, this article provides a potential framework for retaining limited protection for privacy interests during the tenure of an increasingly conservative Court.

Keywords: Constitutional privacy, Supreme Court, Constitutional Theory, Glucksberg, Rehnquist, O'Connor, Troxel

JEL Classification: K10

Suggested Citation

Rahdert, Mark, In Search of a Conservative Vision of Constitutional Privacy: Two Case Studies from the Rehnquist Court. Villanova Law Review, Vol. 51, p. 859, 2006; Temple University Legal Studies Research Paper No. 2006-23. Available at SSRN:

Mark Rahdert (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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