The president has been a fierce critic of Dobbs v. Jackson Women’s Health Organizationthe Supreme Court’s decision that overturned a court-established right to abortion in Roe vs. Wade nearly half a century ago. At a recent press conference, he said he had written “a number of law review articles” and that two amendments to the US Constitution had established a right to privacy that was crucial to reasoning in the deer opinion.
As we’ve already documented, the president tends to embellish the factual record of his past at times. Earlier this year he said he was arrested during civil rights protests when there was no evidence it ever happened. He also claimed he was arrested for trying to see Nelson Mandela, but that was untrue.
These remarks on past law journal articles caught our attention. Biden’s first campaign for the presidency, in 1988, fell apart after reporters discovered that Biden had failed a law school class for submitting an article that borrowed heavily from another law journal article without appropriate citation – then had made false or exaggerated claims about his law school record during a discussion months earlier with New Hampshire voters.
So did Biden write such law review articles?
HeinOnline, an online platform for research articles, displays 19 citations from law journals that list Biden as an author or co-author. (The full list also includes six articles in Foreign Affairs magazine and other non-legal publications.) But these articles touch on issues such as violence against women, war powers, federal drug policy, the global trade and foreign policy — issues that were central to Biden’s long career. in the Senate. None of these law review articles concerned the right to privacy.
When we asked the White House for evidence of his statement, we received a long list of quotes from Biden’s comments on privacy rights, often when he was presiding over Supreme Court nominations as President of the Judicial Committee. For example, one quote noted that Biden got Chief Justice John G. Roberts Jr., during his confirmation hearings, to agree that there was a right to privacy in the 14th Amendment, and a right which “extends to women”.
While these remarks certainly demonstrate Biden’s longstanding interest in legal debate over these amendments, they cannot be characterized as law review articles.
The White House also provided an opinion piece that appeared under Biden’s name in the Philadelphia Inquirer in 1991, titled “Yes, the Constitution Involves Rights That Are Not Stated.”
It’s more relevant. The editorial focuses on the Ninth Amendment, which simply states, “The enumeration in the Constitution of certain rights shall not be construed to deny or denigrate others retained by the people.” This amendment was an effort by James Madison to address concerns that, by listing certain rights, the Bill of Rights would prevent Americans from receiving rights that had not been spelled out. Biden said in the op-ed that the amendment meant “we assume our personal lives are free from government intervention, absent specific constitutional authority for such action.”
But a few years after that editorial was published, the court, in a 1997 decision, said these additional rights must be “deeply rooted in the history and tradition of the Nation.”
In its majority opinion in Dodd, Judge Samuel A. Alito Jr. used this standard to argue that “the inescapable conclusion is that the right to abortion is not deeply rooted in the history and traditions of the nation. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal penalties persisted from the earliest days of the common law until 1973.
The telling of Alito’s story is not universally accepted. “When the United States was founded and for many decades Americans relied on English common law,” reads an amicus brief filed in Dobbs by the American Historical Association and the Organization of American Historians. “The common law did not regulate abortion in early pregnancy. In fact, the common law did not even recognize abortion as occurring at this stage. This is because the common law did not legally recognize a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “acceleration”, which could occur up to the 25th week of birth. pregnancy.
In any case, an opinion piece is not the same as a law review article, which tends to be longer and deeper in the legal weeds than a typical editorial.
Biden can rightly claim to have written an op-ed for a newspaper on the Ninth Amendment and the right to privacy which he says is part of it. He can also claim to have engaged in lengthy discussions with the justices currently on the court about the rights embodied in the Ninth and 14th Amendments. He certainly has a deep understanding of these issues from his long service on the Senate Judiciary Committee.
But the president said he had written “a number of law review articles” on those amendments. That’s gilding the lily — and a president needs to stay specific about his accomplishments. He wins Two Pinocchios.
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