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- <text id=94TT0662>
- <title>
- May 23, 1994: Supreme Court:The Rules of the Club
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1994
- May 23, 1994 Cosmic Crash
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- SUPREME COURT, Page 26
- The Rules of the Club
- </hdr>
- <body>
- <p>By David Van Biema--Reported by Andrea Sachs/New York
- </p>
- <p> Will Stephen Breyer be a leader on this court? If so, it may
- take a while. His vaunted consensus-building skills, honed as
- chief counsel of the Senate Judiciary Committee and polished
- on a federal court of appeals, have been singled out as the
- factor most likely to make him a star in his new job. But that
- is a little like ballyhooing the passing skills of a college
- quarterback: no matter how good he is, he may well play backup
- his first year in the pros.
- </p>
- <p> Every hierarchy has its version of freshman hazing, and the
- court, in its staid way, has traditions for its junior member
- to ponder. Like the youngest child at table, Breyer will find
- himself seated far from Chief Justice William Rehnquist, to
- his extreme left. During the court's conference-room discussions
- of each case, he will always speak last. Indeed, in the past,
- the junior member was said to serve as something of an errand
- boy, "ordering out" for salient documents, expected to open
- the door for colleagues and, absent a staff member, taking their
- messages.
- </p>
- <p> In some earlier eras, Breyer might have hoped to inject himself
- quickly into the life of the court by taking sides in one of
- the wars of strong personalities that have occasionally riven
- it. In their 1979 Supreme Court tell-all, The Brethren, Bob
- Woodward and Scott Armstrong wrote that when William O. Douglas,
- who had recently had a stroke, was asked how he could decide
- cases when he couldn't read, Douglas replied, "I'll see how
- the votes and vote the other way." Today, though Antonin Scalia
- takes sarcastic digs at his colleagues in his opinions, the
- personal rancor is missing. Sheldon Goldman, a political-science
- professor at the University of Massachusetts at Amherst, says
- the Justices' relations are "personally harmonious."
- </p>
- <p> Breyer's role on the court will emerge from what might be called
- his judicial personality, composed of subtle valences of thought
- on a thousand topics, in a room where everyone knows the issues
- and everyone has opinions. A freshman not up to speed on most
- of those issues will project a sketchy profile. This may account
- for the different impressions made by Ruth Bader Ginsburg and
- Clarence Thomas, the court's newest arrivals. The extroversion
- of Ginsburg, an enthusiastic dancer at parties, has been heartily
- reflected in her courtroom demeanor--sometimes to the annoyance
- of her colleagues. On her first day on the bench last October,
- she asked a lot of questions, 17 in the first hour alone. Her
- erudition has impressed legal observers, but her aggressiveness
- has annoyed litigants and even garnered impatient stares from
- fellow Justices.
- </p>
- <p> Thomas is convivial enough. According to unsuccessful 1987 court
- nominee Robert Bork, "He has a great sense of humor and a wonderful
- laugh that shakes the room." Yet Thomas has uttered not one
- inquiry from the bench this term, preferring to rock silently
- back and forth in his chair. While some critics see that as
- diffidence, others note that silence has always been proper
- behavior during oral arguments. Among those who practiced magisterial
- quietude: Thurgood Marshall and William Brennan.
- </p>
- <p> In the long run, Breyer is expected to settle as a moderate
- liberal in the court's influential middle--Sandra Day O'Connor,
- David Souter and Anthony Kennedy. His record with the appeals
- court, however, is varied (some suggest inconsistent) enough
- to make conservatives and liberals fear that he will eventually
- slide over to the other camp. Only environmentalists seemed
- confident that he would regularly vote their way.
- </p>
- <p> If Breyer's freshman performance is less than stellar, he will
- have the opportunity to improve. Time moves differently where
- he is going. Estimates Kathleen Sullivan, a professor at Stanford
- Law School: "It takes about a year to get into the rhythm of
- the court and probably a decade to figure out where your place
- in history is going to be."
- </p>
- </body>
- </article>
- </text>
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