Arguably, few people have ever been better prepared to make the move to the court than Stephen Breyer. Like Justice Alito, he spent more than a decade as a federal appeals court judge. Like Chief Justice John G. Roberts Jr., he was once a Supreme Court law clerk. He then observed the court from a variety of perspectives, as chief counsel of the Senate Judiciary Committee, a member of the United States Sentencing Commission and a Harvard law professor. He was chief judge of the federal appeals court in Boston when, at 55, he was named to the Supreme Court by President Bill Clinton in 1994.
So was the transition an easy one? Far from it.
"I was frightened to death for the first three years," he said in a recent conversation.
Over tea in his chambers, Justice Breyer, who would have broken the record for longest-serving junior justice had Justice Alito's confirmation been delayed a month or so, recalled the anxiety of those early years.
He had felt adequately prepared and had expected to move comfortably into his new role, he said, and was therefore surprised at how overwhelming he found it.
"I was afraid I might inadvertently write something harmful," Justice Breyer said. "People read every word. Everything you do is important. There is a seriousness to every word, and you really can't go back. Precedent doesn't absolutely limit you. In almost every case, you're in a wide-open area. The breadth of that opening, getting up to speed on each case, constitutional law as a steady diet, the importance to the profession. ..." His voice trailed off, and he shook his head. "My goodness!" he exclaimed.
Justice Breyer was speaking only for himself, offering neither advice to nor commentary on Justice Alito or his other new colleague, Chief Justice Roberts. But coming from one who ordinarily projects an air of cheerful self-assurance, his comments were a reminder that the Supreme Court is a different world, even for those who may have spent a lifetime preparing for it. The social rituals and arcane procedures are mastered quickly enough. Getting used to living a life where every word matters takes a bit longer.
With the addition of two new justices in the last four months, the court itself is in the midst of a major transition. It had been 35 years since two justices joined the court in a single term. Lewis F. Powell Jr. and William H. Rehnquist, named by President Richard M. Nixon after the deathbed retirements of Justices Hugo L. Black and John Marshall Harlan, took their seats in midterm.
Their learning curve was steep. Neither had ever served as a judge. Mr. Powell, 64, was a corporate lawyer who had been president of the American Bar Association. Mr. Rehnquist, 47, was an assistant attorney general. The latest pair of new justices, both in their 50's, present a quite different profile.
Justice Breyer has been highly visible in recent months, talking about his new book, "Active Liberty: Interpreting Our Democratic Constitution," to everyone from Larry King to students at Lowell High School in San Francisco, his alma mater. The well-reviewed book has often been described as his answer to a 1997 book by Justice Antonin Scalia, "A Matter of Interpretation."
The two small volumes began as Tanner Lectures on Human Values and represent the antipodes of constitutional interpretation: Justice Scalia grounded in the Constitution's text and the original understanding of its framers, Justice Breyer focused on practical impact, on whether a particular way of looking at the Constitution will enhance democratic participation. But competition with his colleague was not Justice Breyer's goal.
Rather, he said in the recent conversation, he wrote the lectures that became the book to assure himself that he "had a coherent approach" to his job.
"An approach is not a theory," he said. "And it's not ad hoc. It's somewhere in the middle. It's consistency. I wanted to know, Am I being arbitrary? What is the check? After a while, a judge begins to leave footprints. Writing the book, the doing of it, forced me to work through and find the coherence."
It was a task that he could not have begun to accomplish until after he had been on the court for eight or nine years, he said, adding, "That was the internal reward."
Vacancy for Two
Down the hill from the Supreme Court stands the massive Thurgood Marshall Federal Judiciary Building, home to a number of judicial branch agencies, including the Administrative Office of the United States Courts. The seven-story building, with a tree- and light-filled central atrium, also houses two of the choicest office suites in Washington: chambers for retired Supreme Court justices. Both are vacant, and are likely to remain so.
When the building opened in 1992, there were four living retired justices and a growing shortage of space for them at the Supreme Court itself. The idea, pressed by Chief Justice Rehnquist, was that retirement would bring a change of venue — exile, in the view of some justices. Two justices who retired later, Byron R. White and Harry A. Blackmun, did make the move, but since Justice White's death four years ago, the chambers have been empty.
Chief Justice Rehnquist evidently did not plan to move there himself; he let it be known last summer that he intended to remain in the Supreme Court building when he retired. He did not live to see retirement, but Justice Sandra Day O'Connor, now the only retired justice, also declined to leave the building. She did not want to be "out of the loop like Byron," she told acquaintances.
Only if a surfeit of retired justices develops again will Chief Justice Roberts be presented what is likely to be a very delicate game of musical chambers.