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.
Although the constitutional right to abortion appears to be secure, primarily because of a court ruling two years ago partly reaffirming the right, new abortion controversies are developing in the lower courts: on clinics' right to challenge new restrictions on the right, for example, and on poor women's need for public financing of abortions.
Those issues would confront Judge Breyer as a justice, as would further constitutional conflicts over blockades of abortion clinics and stalking of doctors and nurses on clinic staffs. Within two years, perhaps, the court is expected to be asked to rule on the constitutionality of the law passed by Congress last week to provide federal protection of clinics.
As an appeals court judge, Judge Breyer has taken part in two rulings related to abortion.
In 1989, he dissented when his court allowed women to 'f challenge the constitutionality of Massachusetts restrictions on teen-agers' abortions. A year later, he joined a ruling striking down a federal regulation that barred all advice about abortion in federally funded abortion clinics -- a regulation later upheld by the Supreme Court.
No decision by him on abortion issues has emerged since the Supreme Court's 1992 ruling reaffirming a key part of Roe vs. Wade.
Mr. Breyer's role in 1965 in the background of that case was part of internal court deliberations over whether to recognize a constitutional right of marital privacy.
Historian David J. Garrow has written that Justice Goldberg had decided that a right of married couples to obtain birth control devices should be established, but that it should be based at least partly on the Ninth Amendment.
Marital privacy rights
According to Mr. Garrow's new book this year on Roe vs. Wade, drawn in part from justices' files and from conversations with former law clerks, including Judge Breyer, Justice Goldberg assigned clerk Breyer to draft an opinion on the Ninth Amendment approach. Mr. Breyer did so. That effort, with some later revisions, became Justice Goldberg's sweeping separate opinion in the Griswold case.
It said that the right of marital privacy was a "fundamental" constitutional right, giving it the greatest protection available. Marital privacy, the opinion said, was as important as any rights specifically named in the Constitution.
Mr. Garrow and other historians and constitutional analysts trace the origins of right to abortion, established eight years after the Griswold decision, to the 1965 birth-control decision, and in significant part to the wide-ranging Goldberg opinion.
Justice Blackmun also acknowledged that source in Roe vs. Wade.
Among the more vigorous critics of the Goldberg opinion, after it was issued, has been Robert Bork. In his "paper trail" was a 1971 Indiana Law Review article denouncing the Griswold ruling. His article was used against him at the 1987 hearings that resulted in his defeat as a nominee to the court.
At Justice Goldberg's funeral in 1990, Judge Breyer reminisced about the late justice's views on the right of privacy, the Ninth Amendment and the Griswold case. Judge Breyer noted that, in conversations with his clerks, Justice Goldberg had wondered "how could a document survive the ages . . . if it were limited to the protection of the specifically enumerated rights?"
On that occasion, Judge Breyer appeared to be stressing that he was talking about the views of the justice, and not about his own role or his own views of the right of privacy.
He did say that among the things he learned from the justice was "a highly practical view of the Constitution . . . protecting basic liberties in a practical way, a way that permitted achieving the ideal without unduly interfering with the workings of government."
JUDGE BREYER'S RULINGS
Some of the more significant rulings by Stephen G. Breyer since he became a federal appeals judge in 1980:
Church-state relations: Voted to uphold a state law providing bus transportation to parochial-school students, to allow state officials to monitor the regular courses at parochial schools, to uphold the right of Indian tribes in religious worship, but no one else, to use eagle feathers. Voted against giving the federal labor agency power to regulate a church-run college.
Homosexuals: Objected, without saying how he would rule, when his court refused to decide the constitutionality of dismissing a lesbian from college military officer training. Dissented when his court said college students could not get financial aid because they had not complied in every detail with military draft rules.
Freedom of expression: Voted to strike down a loyalty oath required as a condition for working for the World Health Organization, and to nullify a state law controlling fund-raising campaigns for charities. Wrote more narrowly when his court struck down the politically inspired firing of government employees; voted to allow local communities to ban the display of indecent material for minors; struck down a federal election law limit on spending by an anti-abortion group in support of sympathetic candidates.
Libel lawsuits: Ruled that the sexually explicit magazine Hustler could not be sued for libel in New Hampshire just because a few copies circulated there -- a decision later overturned by Supreme Court.
Right to travel: Voted to strike down a federal government rule banning travel to Cuba -- overruled by the Supreme Court.
Prison inmates: Voted to uphold a prison policy of strip-searching inmates.
Environment: Blocked the federal government from allowing ,X oil-drilling off the New England coast.
In his most significant off-bench activity, Judge Breyer played a major role in setting up the federal sentencing guidelines, making punishment for federal crimes more definite and, in many cases, stiffer.