Supreme Court Justice Stephen Breyer, a registered Democrat who was nominated to the court under former President Bill Clinton, said this week that the push from the political left to pack the courts will only “diminish” the public’s confidence in the court and the rule of law and will hurt the court’s ability to serve as a check against the other branches of government.
Breyer, who made the comments on Tuesday in prepared remarks for a speech at Harvard Law School, is one of the court’s three consistently liberal judges. He said that the court’s power depends on “a trust that the court is guided by legal principle, not politics,” according to his remarks, which were obtained by The Washington Post. “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”
Breyer reportedly said that the purpose for his lecture was to “make those whose initial instincts may favor important structural or other similar institutional changes, such as forms of ‘court-packing,’ think long and hard before embodying those changes in law.”
“If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches,” he said. Breyer reportedly took issue with the perception that the court has a 6-3 conservative majority, noting that the court refused to overturn the results of the 2020 presidential election.
“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.”
“It did uphold the constitutionality of Obamacare, the health care program favored by liberals,” Breyer said in noting some of the things that the court has sided with liberals on. “It did re-affirm 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.”
Breyer, 82, said that it was “wrong to think of the court as another political institution.”
Even former Supreme Court Justice Ruth Bader Ginsburg, who was arguably the most liberal justice on the court, warned against packing the court.
“I have heard that there are some people on the Democratic side who would like to increase the number of judges,” Ginsburg said. “I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court, his plan was for every justice who stays on the court past the age of 70, the president would have the authority to nominate another justice. If that plan had been effective, the court’s number would have swelled immediately from nine to 15 and the president would have six appointments to make.”
Ginsburg also addressed the issue of the court appearing partisan, saying, “if anything would make the court appear partisan, it would be that — one side saying, ‘when we’re in power, we’re going to enlarge the number of judges, so we want to have more people who will vote the way we want them to.’”
“So, I am not at all in favor of that solution to what I see as a temporary situation,” she added.
FLASHBACK: Justice Ruth Bader Ginsburg chastises Democrats on court packing, calling it a “bad idea” and “partisan.”
"9 seems to be a good number… I think it was a bad idea when President Franklin Roosevelt tried… I am not at all in favor of that…"pic.twitter.com/pLO3MBd2BJ
— Steve Guest (@SteveGuest) September 19, 2020