Justice Breyer thinks court packing is a bad idea. We agree.

September 30, 2021 | By DUNCAN SCHROEDER
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During the tour to promote his new book, The Authority of the Court and the Peril of Politics, Supreme Court Justice Stephen Breyer voiced his opposition to court packing.

In an interview with NPR, Breyer bashed the idea of Congress “packing” the Court with extra seats in an attempt to change the ideological direction of the Court. He warned:

“What goes around comes around. And if the Democrats can do it, the Republicans can do it.”

Breyer’s statement comes at a time when congressional Democrats are pushing to modify the court to produce outcomes which fall in line with their policy goals and undermine the Court’s current 6-3 conservative majority.

In an April opinion piece for CNN, PLF senior legal fellow Elizabeth Slattery explained that Biden “has tasked a commission to examine a variety of court reforms, including appointment procedures, judicial tenure and the number of active Justices on the Supreme Court.” She also notes that a group of congressional Democrats created legislation that would expand the Court from nine to 13 justices.

Breyer previously lashed out at such reform proposals in April as being attempts to politicize the Court, which he believes undermines public trust in the Court:

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

Breyer, one of the Court’s left-leaning judges, would rather the legitimacy of the Court remain intact with the public than the Court issue rulings that fall in line with his own policy preferences.

This is important right now: a Gallup Poll released last week shows that the Court’s approval rating is down from 49% in July to 40%, which is the lowest approval rating the Court has had since Gallup began tracking the statistic in the year 2000.

Slattery points out that another famous Democrat-appointed Supreme Court Justice opposed court packing due to how it can politicize the Court: The late Justice Ruth Bader Ginsburg opposed court expansion for this very reason, saying, “If anything would make the court look partisan, it would be that one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

Slattery suggests that if the Justices are supposed to vote according to the politics of the president who nominated them (which they’re not), the Court is doing a bad job.

“[W]hy isn’t Donald Trump still president? Weren’t we told that his hand-picked Justices—I including newcomer Amy Coney Barrett—would help deliver Trump a second term? Why isn’t every case decided along ‘party’ lines?” Why did the Court uphold Obamacare in June, despite the confirmation of a “judicial torpedo”—as Sen. Sheldon Whitehouse described then-Judge Barrett—aimed at taking down that law? Despite the fear mongering of pundits, the Court has yet to produce such outcome-oriented results.

As Slattery argues, the non-partisan rulings of the Court could be due to it being more committed to following its constitutional role than other recent courts:

“Some judges do mistake their limited role in our constitutional system, focusing on the outcome rather than the governing text’s actual meaning. Today, however, there are more Supreme Court Justices committed to ruling based on the text and original meaning of the Constitution and laws, wherever that may lead, as opposed to other methods of judicial interpretation, than at any other time in recent memory.”

The lack of partisanship on the Court is also a result of the Court’s design.

Slattery explains that the Founders set up the Court to be separate from the political system:

“The Supreme Court is not supposed to be a political institution. America’s framing generation knew well that judges’ independence from politics was essential for our system of government, based on a written Constitution, to work.”

She adds that the Founders granted the Justices life tenures to incentivize them to stay out of politics:

“That is why federal judges enjoy life tenure—so they would not be tempted to rule with an eye toward their reelection or reappointment. And, as the Constitution explains, they may only decide live judicial cases or controversies—so courts cannot act like a roving council of revision over our nation’s laws.”

At the end of her piece, Slattery best summarizes the argument against packing the Court:

“If there is a perception that the Supreme Court is politicized and illegitimate, the solution is not adding more Justices. The solution is to stop asking the Justices to twist the Constitution and laws to satisfy partisan yearnings. In short, we should ask judges to be judges and politicians to stop politicizing the courts.”

That’s advice we should all follow.