Free First Among Equals by Kenneth W. Starr Page A

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