Free First Among Equals by Kenneth W. Starr Page B

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