Liberal Supreme Court Justice Stephen Breyer Warns Against Court Packing

Written by Carmine Sabia

OPINION: This article contains commentary which reflects the author's opinion




Joe Biden and his band of vengeful Democrats just got a Supreme Court smackdown and it came from one of their own.

Liberal Justice Stephen Breyer went against the Democrats who think that packing the Supreme Court is a good idea because there are too many conservatives on it, The Washington Post reported.

Justice Stephen G. Breyer said Tuesday that advocates of expanding the Supreme Court to dilute the power of its conservative majority should “think long and hard” about the risk of making justices appear more political and eroding public confidence in the court.

Breyer, one of the court’s three liberals, defended its independence by pointing to a decision to resist President Donald Trump’s attempts to draw the court into lawsuits seeking to overturn Trump’s election defeat.

In remarks prepared for a speech at Harvard Law School, Breyer wrote that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”

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

Justice Breyer said he is aware that justices are picked by politicians because of their judicial philosophies and that the media does portray some as conservative and others as liberal, something many of the justices have spoken against in the past.

But, he said, if the court was to be packed then the justices would be seen as even more political which would erode the confidence that Americans have in the court to make decisions.

“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,” the justice said.

“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,” he said. “But the court did not hear or decide cases that affected the political disagreements arising out of the 2020 [Trump v. Biden] election.”

But he pointed to the court’s decision on Obamacare to show that the court is fair.

“It 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,” the justice said.

He said that “at the same time it made other decisions that can reasonably be understood as favoring ‘conservative’ policies and disfavoring ‘liberal’ policies. These considerations convince me that it is wrong to think of the court as another political institution.”

He pointed to the conservative justices, minus Chief Justice John Roberts, ruling that the state of California could not stop church services.

“Why would all members of the court not agree that a state can limit inside attendance but not forbid it entirely?” Justice Breyer said. “The answer could be that some judges believe that the state must be especially careful when imposing restrictions upon religious worship. Others might believe that freedom of religion must give way to a consensus of scientific opinion at times of significant risks to health.”

Biden has said that he is “not a fan of court-packing,” but he has pledged to create a bipartisan commission to explore making changes to the court.

The late Justice Ruth Bader Ginsburg also expressed her concerns about packing the court before her death.

“Nine seems to be a good number. It’s been that way for a long time,” Justice Ginsburg said. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”