Justice Stephen Breyer warns against 'packing' Supreme Court

Justice Stephen Breyer warns against 'packing' Supreme Court

April 7, 2021

Justice Stephen Breyer, the most senior member of the U.S. Supreme Court’s liberal wing, delivered a stark public warning Tuesday against partisan proposals to expand the court and the branding of its current makeup as “conservative.”

“It is wrong to think of the Court as another political institution,” Breyer said in remarks prepared for delivery at Harvard Law School. “And it is doubly wrong to think of its members as junior league politicians.”

“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” he said.

PHOTO: Supreme Court Justice Stephen Breyer listens during a meeting in Washington, March 23, 2015.

Breyer’s remarks come at a critical moment for the justices, as the White House prepares to launch a federal commission on court reform and as court reform advocates on the political left lobby loudly for adding justices to the bench and imposing term limits.

Democratic proposals to “pack” the court with more members, picked by President Joe Biden, gained steam last year after President Trump and Senate Republicans rushed confirmation of a replacement for the late Justice Ruth Bader Ginsburg just weeks before the 2020 election.

Biden has said he’s “not a fan” of court-packing, but has not taken a firm position on the issue. “The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want,” Biden told the CBS News program “60 Minutes” in October 2020. “Presidents come and go. Supreme Court justices stay for generations.”

Breyer, who was appointed in 1994 by President Bill Clinton, warned against the court becoming simply another partisan battleground, saying those calling for structural changes should “think long and hard before embodying those changes in law.”

The Constitution does not stipulate the size or makeup of the court; it’s a decision left to Congress. There have been nine justices on the bench since 1869.

“The rule of law has weathered many threats, but it remains sturdy. I hope and expect that the Court will retain its authority, an authority that my stories have shown was hard-won. But that authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics,” Breyer said.

The justice waded into the debate just as the court reaches the pinnacle of its term and prepares to hand down more than a dozen major opinions. The remarks were also notable because of the spotlight on Breyer and whether he might soon decide to retire. The 82-year-old justice made no mention of his future in the speech.

Breyer has long been an outspoken defender of the Supreme Court as a nonpartisan institution and bristled at the labels of ‘liberal’ and ‘conservative’ that many commentators and the media affix to individual justices. He argues that differences among the justices are a matter of legal philosophy and textual interpretation — not politics.

“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 2020 (Trump v. Biden) election.”

Breyer noted that a so-called “conservative” court upheld Obamacare, affirmed abortion rights, and blocked controversial policies advanced by former President Donald Trump, including the addition of a citizenship question to the 2020 census.

“At the same time,” he added, “it made other decisions that can reasonably understood as favoring ‘conservative’ policies and disfavoring ‘liberal’ policies.”

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