Serious questions about Sutton’s views on other constitutional law questions are raised by the amicus curiae brief he filed on behalf of a number of states in Chicago v. Morales, 527 U.S. 41 (1999). See Brief in Support of Petitioner, 1998 WL 328367 (U.S. Amicus Brief). That case involved a Chicago anti-loitering ordinance that was so broad that, as the Court explained, it would prohibit a person from waiting outside Wrigley Field “just to get a glimpse of Sammy Sosa leaving the ballpark.” 527 U.S. at 60. The Court struck down the ordinance 6-3, with only Scalia, Thomas, and Rehnquist dissenting. Sutton’s arguments were endorsed by the dissenters, but squarely rejected by a majority of the Justices. For example, the Court refused to accept Sutton’s claims that the ordinance was not vague and that it provided fair warning of the prohibited conduct. See 527 U.S. at 55, 58-59. See also 527 U.S. at 64, 69, 73 (O’Connor, J., concurring) (Kennedy, J., concurring) (Breyer, J., concurring). Sutton asserted that there is no constitutionally protected right to move from place to place and “loiter” for innocent purposes. As the plurality opinion specifically stated, however, the Court has recognized this freedom as “part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” 527 U.S. at 53. The courts have similarly ruled that the rights of privacy and reproductive freedom are part of the “liberty” protected by the Due Process Clause, raising even more troubling questions about Sutton’s views.
Sutton does not have a specific record on privacy or reproductive rights, something that NARAL has cited as “worrisome, particularly in light of [his] affiliation with Justice Scalia, one of the Supreme Court's most vociferous opponents of reproductive rights.” 15 The closest Sutton appears to have come to taking a position on reproductive rights is an article for the Federalist Society, in which he wrote that 1999-2000 was “not a good Term for anti-abortion advocates.” Jeffrey S. Sutton, “Supreme Court 2000 - A Review and Preview,” The Federalist Paper (Summer 2000) at 6-7. The basis for Sutton’s pronouncement was a pair of 5-4 Court rulings striking down a Nebraska statute restricting so-called partial-birth abortions and upholding a Colorado law helping protect abortion clinic patients from unruly protesters. Stenberg v. Carhart, 530 U.S. 914 (2000); Hill v. Colorado, 530 U.S. 703 (2000). Both decisions, Sutton stated, dealt a “blow to efforts to minimize the number of abortions in this country.” Id. at 8. Further inquiry is clearly warranted on this important issue.
15. See http://www.now.org/issues/legislat/nominees/sutton.html .