First Among Equals (8 page)

Into Justice Kennedy's place stepped Justice Stephen Breyer. Law professor, judge (indeed, chief judge of the U.S. Court of Appeals in Boston), and public-policy wonk, Justice Breyer had come into his own through a professorship at the Harvard Law School coupled with a stint in public service as a senior staffer on Capitol Hill. Then-Professor Breyer, on leave from his academic perch at Harvard, became a deregulatory champion on Senator Edward Kennedy's staff during the 1970s. He had served, ably, as Senator Kennedy's chief counsel during the Carter years when Washington was filled with bipartisan zeal for deregulation. Chief Counsel Breyer's principal accomplishment was putting the old Civil Aeronautics Board out of business (as principal staff architect of the Airline Deregulation Act of 1978), while winning friends and admirers on both sides of the aisle. Of most enduring political importance, soon-to-be Judge Breyer won the ardent respect of Utah Republican Senator Orrin Hatch, who was destined to be chairman of the Senate Judiciary Committee. Years later, Breyer's relationship with Senator Hatch and other Judiciary Committee Republicans assured his smooth confirmation to replace retiring Nixon appointee Harry Blackmun. Justice Blackmun, the passionate defender (and author) of Roe
v. Wade,
had outlasted Republican presidents and left his vacant seat to be filled by President Clinton. His successor, he was confident, would zealously defend his principal legacy, Roe
v. Wade.

The academic Breyer has mounted the most comprehensive attack on Justice Scalia's approach. “Attack,” though, overstates it, in view of Justice Breyer's easygoing style. Like Scalia, Breyer is likable, witty, and a powerful speaker. Impressive in oral arguments, he sounds reassuring and measured. He avoids, scrupulously, being argumentative. He declines, with great effectiveness, to join the textualist school and carries on by example a very different style of constitutional judging. He displays balance, moderation, care. “Why be doctrinaire, why be so rigid?” he seems to ask. Who can be so sure? Consider all the relevant materials that will be helpful in statutory (and constitutional) interpretation. Take the case law very seriously, and
stare decisis
does indeed count. Armed with a powerful intellect combined with a charming personality, Breyer carries on the philosophical fight more subtly than the irrepressible Scalia.

The justice from San Francisco (Stanford undergraduate, then Harvard Law) has growing influence within the Court. He arrived six years after Justice Scalia, long indeed in “Court time,” and he remains (as of this writing) the Court's most junior member. But influence he has, abundantly, wrapped in a quieter, less flamboyant style than the larger-than-life master of the textualist school. Justice Breyer doesn't occupy the bully pulpit with either the zeal or the frequency of Justice Scalia. Nor does he write as memorably, or as quotably, as his textualist counterpart. But he does his work with enormous collegiality. He seems to enjoy joint appearances more than solo performances. Justice Scalia is a one-man show; Justice Breyer seems more at home on panels. Sharing podiums, participating with his colleagues—especially Justices O'Connor and Ruth Bader Ginsburg—seems to be his preferred venue. His individual message, as a result, is not quite so vivid. He is not the Scalia-style nightingale alone in the forest.

This spirit of collegiality pours over into Breyer's philosophy of judging. Veteran of Capitol Hill that he is, Justice Breyer seems acutely sensitive to letting Congress (as opposed to state legislatures) have its way. His opinions convey deep respect for the congressional process, and—relatedly— modesty as to the judicial capacity to figure out knotty problems with which Congress must wrestle. He is also sensitive to the practical demands of government, as seen in his separate opinion in the Paula Corbin Jones case. There, while disagreeing with President Clinton's argument that he should enjoy a temporary immunity from civil litigation, Justice Breyer expressed worries about the possibility of distracting litigation. Judges, he insisted, should be highly respectful of the presidency and its demands.

The reader will have already noted the irony here. The textualist school argues against judicial power while frequently striking down Congress's work product. Justice Breyer, in contrast, strives mightily to sustain what Congress has done; indeed, he will defer to Congress when his fellow “liberals” will not. So it was that he found himself in dissent when the Court, including his fellow Clinton administration appointee Ruth Bader Ginsburg, struck down a law aimed at preventing sexually explicit channels, like the Playboy Channel, having their visual or audio signal intruding (“bleeding”) into home(s) of viewers who had not subscribed to such salacious stuff. Signal bleed, as it is called, was obviously a serious problem for parents concerned about their children. Drawing from First Amendment precedents, Justice Kennedy—the ardent First Amendment defender—combined with the Court's liberal members and, intriguingly, with Justice Thomas to invalidate the law on First Amendment grounds. The reason was not love of Playboy or Spice Channel material. Rather, the same result (protecting homes against unwanted signals) could have been achieved through less intrusive methods.

But to Justice Breyer, these were technical issues calling for judicial modesty and deference to Congress. Reaching across the usual philosophical lines, Justice Breyer authored the main dissenting opinion in the case, joined by his textualist nemesis Justice Scalia and Chief Justice Rehnquist (who, as the senior justice in the minority, would have made the tactical decision to assign the writing to Justice Breyer) and his philosophical friend, Sandra Day O'Connor. Breyer expressed the need for deference to Congress's judgment in seeking to shield children from unwanted adult-programming signals. He challenges Justice Kennedy's analysis for the majority: “I could not disagree more when the majority implies that the Government's independent interest in offering such protection—preventing, say, an eight-year-old child from watching virulent pornography without parental consent—might not be ‘compelling.’ “ To Justice Breyer, Congress knows best.

In a similar vein, joining (as he increasingly does) with Justice O'Connor, Breyer has moved to the center on the issue of government aid to parochial schools. If Congress wants it, Congress can have it. The upshot, surprisingly, is that Justice Breyer has actually shifted from his earlier opposition to such aid; he had initially embraced a more hard-line separationist approach to Establishment Clause issues. He has since moved a long way—to a position of embracing Congress's bipartisan effort to provide computers and other learning materials to all schools, including private parochial schools. No rigid doctrines for Breyer. Leaving behind the unyielding separationism of the Court's most liberal justices (who were quite willing to invalidate Congress's handiwork), Justice Breyer has been willing to accommodate. Yet he would not embrace the more doctrinally pure approach of Justice Thomas, who wrote the main opinion upholding Congress's program of aid to parochial schools. Rather, Justice Breyer was in agreement with his frequent jurisprudential companion, Justice O'Connor, in a separate opinion (for the two of them only). The upshot is that a seemingly odd couple— Justices O'Connor and Breyer—now are the decisive votes in this sensitive area of First Amendment law.

There is one huge chasm, however, between Justice Breyer and O'Connor: the rights and prerogatives of the states. Justice Breyer's ideal of deference to Congress leads him, in sharp contrast to Justice O'Connor, to uphold federal statutes that intrude into traditional arenas of state regulation, and he is increasingly the voice of the four-member minority in this respect. Although on the losing side on this issue, Justice Breyer now serves as the pro-congressional-power franchise player.

History here is an unerring guide. Democratic presidents since FDR have never failed in nominating justices who welcome congressional assertions of power to regulate, as against the claims of the states. Congress may, in the Democratic nominees’ perspective, step over the constitutional line when it comes to individual rights. That not infrequently happens. So it was in the Playboy Entertainment case that Justice Ginsburg aligned herself with the First Amendment challengers to Congress's effort to keep adult-fare signals from bleeding into nonsub-scribers’ homes. But for the two appointees of President Clinton, the states will lose when Congress sees fit to legislate in arenas of their traditional authority. Of the two the nimble Justice Breyer has proved the more influential.

Thus, on the subject of partial-birth abortion, it was altogether natural that the writing assignment fell to Justice Breyer (made by the senior justice in the majority, Justice Stevens) to write the deeply controversial majority opinion invalidating the state law prohibiting the procedure. No one else would so likely win the vote of Justice O'Connor (to the dismay of Justice Kennedy) on this wrenching subject. Justice Breyer knew how to put the winning combination together.

For the Supreme Court of the past two decades, abortion has been the most divisive, intractable issue. This, more than any other issue (including right-to-die questions, school prayer, and affirmative action), has moved ordinary people to take to the streets. For pro-choice forces, anxious to avoid further erosion of
Roe's
triumph for autonomy rights, Justice Breyer has become the pivotal justice. On this subject he is now the Court's leader. And he has achieved this status quietly, without offering a formal response to Justice Scalia's articulation of textualism.

For all their influence, however, none of the five key justices is as intriguing and original as Clarence Thomas. His life story is well known. Born into poverty in Pin Point, Georgia, Thomas was rescued from a dysfunctional family by a loving grandfather, raised as a Roman Catholic (and after a period of Episcopalianism returned to the faith of his youth), educated at Holy Cross and Yale Law School. He is a black conservative, a combination that confounds many. But even to his detractors, his warmth and humanity are unquestioned, as movingly reflected by the recent adoption of his nephew, Mark, and his becoming, by his own description, a soccer mom. He is a person of deep emotion, occasionally moved to tears on the podium, only minutes later to astonish companions who don't know him well with a robust, booming laugh. He is a justice of few questions at oral argument but one brimming with ideas, willing at times to play the iconoclast. He is unyieldingly principled, and thus a hero to conservatives. He is in the pro-liberty camp, as long as a textual basis can be found for the right or liberty in question. Like Scalia, for example, he frequently sides with criminal defendants,
when
they are asserting a textually rooted right (such as the Fourth Amendment's protection against unreasonable searches and seizures and the Fifth Amendment's protection against compelled self-incrimination). But otherwise he is skeptical of judicial power, and thus refuses not to follow the language of the Constitution and the Bill of Rights; he will not “create the law.” The clearest example is the death penalty, which is textually grounded in the Constitution, and thus to Justice Thomas the death penalty cannot be per se unconstitutional. Thomas, in short, is the polar opposite of the common-law constitutionalist.

On the other hand, the early canard that Justice Thomas is simply a Scalia clone is barely heard any longer as Thomas moves into his second decade of service. They are both tex-tualists, and this brings them together on a wide variety of issues. Abortion, thus, is utterly without constitutional protection, save for a general protection against arbitrary, irrational restraints on liberty. But Thomas is more willing than Scalia to revisit seemingly settled issues. If the Court's decisions are wrong, then the doctrine in question should be reexamined. The task of the principled justice, in Thomas's view, is to get the right answer—years and even decades of wrong answers by the Court don't make it right. And there are no compromises; that's the stuff of politics, not law. This mind-set positions Thomas wholly apart from O'Connor, even though they frequently agree on a bottom line as to the proper result in a case.

The three remaining justices are the forlorn liberals: two Republican appointees, John Paul Stevens and David Souter, and Ruth Bader Ginsburg, appointed in 1993 by President Clinton. Stevens, a bowtie-wearing midwesterner, is warm and gracious, as befits his midwestern roots. Extremely smart and creative, Stevens, appointed by President Ford in the wake of Watergate and the resignation of President Nixon, began his service on the Court as a bit of an odd man out. He seemed to look at legal problems differently, more creatively. But in due course he hit his stride, and he has been unabashedly liberal in approach for the past two decades. He is an untiring supporter of abortion rights, uncompromising in defense of a separationist approach to church-state issues, inclined to support the rights of criminal defendants, unsparing in objections to the death penalty. In short, he is a dream justice by the standards of the
New York Times
editorial board and the cultural elite. Even better for Warren Court admirers, Stevens will use judicial power to achieve what he thinks is right and just.

The result is that Justice Stevens, even with his great talents, has largely been marginalized. Despite his intellect and energy, he has taken on the role of naysayer. But he is not alone. Fellow Republican David Souter, who had served as attorney general of New Hampshire and as a justice on that state's supreme court before a brief stint on the federal court of appeals in Boston, has utterly confounded those around President Bush who engineered his nomination. He has become, with very few exceptions, reliably liberal. He thus has likewise been in dissent on the big issues, unless, of course, Justice O'Connor (or, to a lesser extent, Justice Kennedy) swings to the liberal camp. A lifelong bachelor, Souter is a prodigious worker and leads an ascetic style of life. But he labors, in the context of the Rehnquist Court, on the margins, lacking great influence on his fellow justices. His quick transformation from a traditional conservative to a reliable liberal remains unexplained. Unlike Harry Blackmun, who seemed radicalized by the uproar over his majority opinion in
Roe v. Wade,
Justice Souter has had no dramatic experiences during his quiet, unremarkable tenure that would explain his complete about-face.