The issue there is the reactionaries who claim to be 'textualists' and 'originalists' have all but decided the ninth amendment is meaningless.

Scalia said, "the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people".

Of course, anyone with a brain can see that Scalia was the first to abandon textualism or the reactionary idea that judges should not engage in 'judicial activism' whenever they came in conflict with conservative policy.