Breyer work shaped law on privacy

May 15, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The SunWashington Bureau of The Sun

WASHINGTON -- As a law clerk, Supreme Court nominee Stephen G. Breyer played a significant part in writing a sweeping judicial statement on the constitutional right of privacy -- a declaration that led to the right to abortion.

He was the author of a draft opinion that argued that "fundamental" personal rights should be established, even if they are not specifically mentioned in the Constitution -- a view that has produced controversy in every Supreme Court nomination process in recent years and could do so again at Judge Breyer's confirmation hearings this summer.

The opinion he crafted in 1965, for the signature of the late Supreme Court Justice Arthur L. Goldberg in a birth-control case, suggested a right of privacy in marital sex and thus set the stage for Roe vs. Wade -- the abortion decision written in 1973 by the justice whom Judge Breyer would succeed, Harry A. Blackmun.

Justice Blackmun's opinion cited the earlier Goldberg opinion as support for a right of privacy that could include the right to abortion. When he spoke at Justice Goldberg's funeral four years ago, Judge Breyer praised the Goldberg role in the expansion of individual rights.

The opinion drafted by Judge Breyer, apparently based on his own research, suggested that the Ninth Amendment could be interpreted as the source of "fundamental" rights beyond the specific ones in the Bill of Rights. The Ninth Amendment says nothing about a right of privacy, but it does say that the rights mentioned in the Constitution are not the only ones that might exist.

The Breyer draft led to this final declaration under Justice Goldberg's signature: "The concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights." It is a common view of constitutional scholars that no court declaration on privacy is as sweeping as the one under Justice Goldberg's name in 1965.

The Breyer draft opinion, referred to in internal notes found in the Library of Congress files of several former justices, has gone unmentioned in the public discussion of a Supreme Court nomination for Judge Breyer. It is, however, the kind of "paper trail" item that often becomes a highlight of Senate Judiciary Committee hearings on court nominees.

Judge Breyer has a relatively noncontroversial record over 13 years on the federal appeals court in Boston. But prior writings of all kinds, in all settings -- and especially those on the right of privacy -- have provided grist for the committee: In the case of nominee Robert H. Bork, they contributed to his defeat in 1987.

The committee has focused on papers in a nominee's trail even if they were years old, and even if they were written when a nominee was a law clerk. The committee has operated on the assumption that prior expression may say something about present views, and thus how a future justice might vote.

Chief Justice William H. Rehnquist had two hearings before the committee, for his initial nomination to the court and then for his elevation to the chief justiceship, and both times he was pressed about what he had written about school desegregation when he was a Supreme Court law clerk 40 years ago.

Judge Breyer's draft opinion in the case of Griswold vs. Connecticut in 1965 could provide at least passing controversy for him on his way toward likely Senate approval.

Although not much controversy has arisen over Judge Breyer's nomination, what little has emerged mostly involves abortion. As a federal appeals judge, Judge Breyer has seldom written on that subject. But his limited output already has led the National Right to Life Committee to predict that he "will take an expansive view" of abortion rights. And it led two abortion rights groups -- the Center for Reproductive Law and Policy and the National Abortion and Reproductive Rights Action League -- to express caution about where he stands.

Privacy litmus test

No topic has so interested the Judiciary Committee in the Supreme Court nomination process in recent years as the privacy question because of two of its implications: First, it provides a gauge of whether a judge is inclined to recognize new rights not explicitly mentioned in the Constitution; and second, it provides something of a litmus test on abortion.

Every nominee since Mr. Bork's defeat has had to give some accounting of his or her views on that question.

But the right of privacy is becoming controversial in a new way, beyond the abortion issue: This month, a federal judge in Seattle concludedthat the constitutional right to privacy includes a terminally ill person's choice to have a doctor assist in suicide. That is a question likely to reach the Supreme Court, perhaps in one of the cases growing out of the assisted suicides involving Dr. Jack Kevorkian of Detroit.

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