The Rules of the Club

By DAVID VAN BIEMA

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.

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.

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."

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.

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.

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.

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."

With reporting by Andrea Sachs/New York