Free First Among Equals by Kenneth W. Starr

judge (or justice) may be widely viewed as a person of great wisdom and high integrity. Her views may be firmly rooted in widely shared moral and ethical norms. But that process of judging is not one of law, the Scalia school would say. To textualists, that approach is nothing less than judicial power in control, displacing democratic choices made through the political process.
    Depending on the level (or degree) of judicial creativity, this fashioning of common-law constitutional principles leaves a moderate centrist like Justice Kennedy uneasy. That seemed to be happening as the closely watched term ending in June 2000 drew to its remarkable close. And so it came to be that in the partial-birth abortion case, a critical juncture in constitutional interpretation, Justice Kennedy was unwilling to engage in a creative form of common-law constitutionalism.
    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