During a Tuesday address at Harvard Law School, Supreme Court Justice Stephen Breyer spoke out against packing the Supreme Court. Breyer told students the addition of several justices for the purpose of diluting the power of the conservative majority “could further erode public trust and weaken the court’s influence.”
Breyer is one of three liberal justices on the court. Currently 82-years-old, there is hope among Democrats that he might retire while the party still holds the White House and the Senate. If anyone was hoping he would discuss his future plans during his speech, they were disappointed.
Citing the court’s rejection of former President Donald Trump’s election challenge cases, Breyer “defended the court’s independence.” He believes the “court’s authority rests on a trust that the court is guided by legal principle, not politics.”
“If the public sees justices 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.
The justice mentioned “four decisions — on the Affordable Care Act, abortion, the census and young immigrants — in which the court had disappointed conservatives.”
In each of those 5-4 decisions, all made prior to the death of Justice Ruth Bader Ginsburg, Chief Justice John Roberts Jr. had voted with the liberal wing of the court, according to The New York Times.
“Structural alteration motivated by the perception of political influence would only feed that perception, further eroding that trust.” Breyer noted.
It is his hope 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.”
Throughout the 2020 campaign, President Joe Biden refused to answer questions about his position on court-packing.
During an October interview with CBS’ “60 Minutes,” Biden said, “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. Presidents come and go. Supreme Court justices stay for generations.”
At the end of January, however, his administration set up a commission to study Supreme Court reform. At that time, a White House official issued a statement which said, “The President remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks.”
Under current Senate rules, 60 votes would be needed to (block the filibuster) pass a bill to expand the Supreme Court.
But, as we saw on Monday, when the Senate parliamentarian agreed with Senate Majority Leader Chuck Schumer’s interpretation of a section of the Budget Reconciliation Act, thus likely handing Democrats an extra chance to pass another budget busting bill this fiscal year, he may well find a way around the filibuster on legislation to pack the court.
Ohio State University Law School professor Peter Shane told WUSA9 that “Senate Democrats could block the filibuster with what’s known as the ‘nuclear option,'” which is a change to a Senate rule for a specific item.
The nuclear option was used by then-Senate Majority Leader Harry Reid in 2013 to allow Democrats to confirm executive and judicial nominees (with the exception of Supreme Court nominees) with 51 senate votes.
Reid’s move paved the way for his successor, then-Senate Majority Leader Mitch McConnell, to “go nuclear” for the express purpose of confirming Supreme Court nominees by a simple majority in 2017.
I wouldn’t bet against Schumer to do the wrong thing.
Breyer has served on the Supreme Court since 1994.