Justice Breyer Warns Against Packing Supreme Court
“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” the justice warned during a speech at Harvard Law School.
During an April 6 speech at Harvard Law School, Justice Stephen Breyer sought to squelch proposals to increase the number of Democrat-appointed justices on the high court.
In prepared remarks, the justice made clear that he had come to Harvard to beat back the progressive campaign to dilute the influence of the six GOP-appointed justices by expanding the size of the court.
“It is wrong to think of the Court as another political institution,” said Breyer.
“And it is doubly wrong to think of its members as junior-league politicians,” he added. “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust. There are no shortcuts to it.”
Leading progressive organizations quickly dismissed the justice’s warnings in a series of tweets that suggested it was too late to worry about the public’s fading trust in the institution, or, conversely, that restructuring the court would actually restore trust. One activist group, Take Back the Court, tweeted:
“Public trust in the Supreme Court was lost when Republicans stole a seat from Barack Obama and confirmed another justice 8 days before an election that Trump appeared likely to lose. We must expand the Court to RESTORE trust in the Supreme Court.”
The 82-year-old Breyer has stirred speculation that he could step down soon, allowing President Biden his first opportunity to nominate a justice to the high court.
Back in 2016, Democrats fumed when the GOP-controlled Senate blocked the nomination of Merrick Garland, President Obama’s final pick for the Supreme Court. And after the death of Justice Ruth Bader Ginsburg last September, they argued that the winner of the 2020 election should nominate the justice filling Ginsburg’s seat. President Trump and then-Senate Majority Mitch McConnell disagreed, and Amy Coney Barrett was confirmed along party lines before the 2020 election.
Now, Democratic lawmakers and progressive activists contend that the court’s 6-3 conservative majority is dangerously out of step with mainstream American values. Some have argued that an expansion of the court is needed to address this ideological imbalance.
President Biden refused to make his own views clear on this subject during the 2020 presidential campaign. But The Wall Street Journal confirmed that the president has “asked former Obama White House counsel Bob Bauer to spearhead a commission to review potential structural changes in the Supreme Court, but little so far has publicly emerged regarding its activities.”
Justice Breyer, for his part, sought to downplay the media’s politicized narrative of court proceedings and celebrate the justices’ ability to transcend partisan loyalties.
He pointed to Bush v. Gore, the high-wire 2000 presidential election case in which the court ended the protracted Florida ballot recount, making George W. Bush the winner.
“The Court divided 5-4. I did not agree with the Majority. And, I wrote a dissenting opinion,” Breyer noted. “Despite its importance, despite the belief (held by half the country) that it was misguided, the nation followed the decision without violent riots, without the throwing of stones in the streets. And the losing candidate, Al Gore, told his supporters, ‘Don’t trash the Supreme Court.’”
“These facts suggest that obedience to the court’s decisions, respecting those decisions even when they are wrong, has become close to habitual,” Breyer said, making the point that the proposed changes made by Democrat lawmakers could undermine public trust.
The basis of this trust, he said is “that the court is guided by legal principle, not politics.” When the nation views the justices as “politicians in robes,” the court’s “power to act as a ‘check’ on the other branches” will also be at risk.
Bolstering his argument, Breyer noted that the court’s conservative majority had repelled President Trump’s petitions to hear challenges to the 2020 presidential election results in a number of states, where voter fraud had been alleged, allowing lower-court decisions to remain in force.
“The court’s decision in the 2000 presidential election case, Bush v. Gore, is often referred to as an example of its favoritism of conservative causes,” Breyer said. “But the court did not hear or decide cases that affected the political disagreements arising out of the later 2020 [Trump v. Biden] election.”
Indeed, for all the progressive attacks on the present-day court, he asked his law-school audience to consider the string of recent legal victories celebrated by the Democrats’ base.
The court, he said, “did uphold the constitutionality of Obamacare, the health-care program favored by liberals. It did reaffirm precedents that favored a woman’s right to an abortion. It did find unlawful certain immigration, census, and other orders, rules, or regulations, favored by a conservative president.”
Looking ahead, Breyer made clear that he believes the institution will endure.
“I am an optimist,” he said. “The rule of law has weathered many threats, but it remains sturdy. I hope and expect that the Court will retain its authority.”
No doubt, most Americans hope the justice’s optimism is not misplaced.
As the Biden administration weighs its next move, let us hope Breyer’s well-timed warning hits its mark.