Supreme Court Associate Justice Stephen Breyer, who has served the Court since 1994 when he was nominated by then-President Bill Clinton, has been in a tug of war with the more progressive wings of the Democratic Party, warning them against their intentions to pack the court with more liberal judges as a response to the 6-3 conservative majority.
The 82-year old judge made these warnings in a book to be published later this fall (called The Authority of the Court and the Peril of Politics) where he says that Democrats should “think long and hard before embodying those changes into law”, referring to the recent calls by some Democratic lawmakers to implement laws that would increase the size of the court, altering the current balance of power in it.
It is not the first time the associate supreme justice has openly criticized the idea of packing the court (or as supporters call it “expanding the court”), with Breyer also arguing against the proposal while he spoke at an event in Harvard Law School on April. Then, he hammered the argument that it would be detrimental for the health of the republic to see the Court as a political institution, also saying that it was wrong to see judges as “junior-league politicians”.
For him, the mere fact of describing SCOTUS justices as conservatives or liberals to be damaging as it “reinforces the view that politics, not legal merits, drives Supreme Court decisions”. His main concern is that, if the general public gets the general perception that judges are “politicians in robes”, then the general trust towards the courts will be significantly eroded.
Although the current proposals for packing the courts appear to be dead on arrival in the House of Representatives, with Speaker Nancy Pelosi saying there are “no plans” to put the bill to a vote, it is very unlikely that calls for packing the court will just vanish into the air, and there will surely be a lively debate on whether ti implement the measure after Biden’s commission on judicial reform publishes its report.
Breyer makes these comments at the same time as there have been increasing calls for his resignation, with many liberals hoping the Clinton-era judge to resign while Biden and his Democrats still hold both the White House and the Senate, which would ensure his replacement has similar views as him and avoiding the possibility of a Republican President and Senate to nominate Breyer’s replacement.
However, there has been little to no information on Breyer’s plans on his future in the court, and some may argue that his repeated calls against the politicization of the court as a hint that he will try his best to avoid basing his decision of whether to retire or not on political timing.
Is Justice Stephen Breyer right?
Breyer’s argument against reforms aimed at altering the composition of the highest court in the land for political reasons is fundamentally simple: if we treat the courts as composed by party loyalists (basically making it a smaller, more legalistic Congress) then it would be very difficult to maintain the legitimacy of the Court, and it is impossible to maintain a stable democracy with a court that is not respected by the population.
Although Breyer does not directly make this argument, packing the courts would also not be the panacea to avoid a conservative majority in the court forever. If a Democratic Congress passes a law increasing the number of judges, there is nothing to stop Republicans to do the same once they inevitably take back control of the levels of power in Washington D.C. However, not all liberals share Breyer’s assessment and concerns.
Erwin Chemerinsky, the dean of UC Berkely’s School of Law, said that while Breyer was right on saying that packing the court will be seen as a partisan grab, he is not addressing the other concern: “a very conservative Supreme Court for years, if not decades, to come”. Another liberal view against Breyer’s opinion was well expressed by Ian Millhiser in an article at Vox.com, where he said that the Judge needs to view that Democrats are viewing the court as partisan “because it has become a partisan institution”.
Millhiser argues that while the Judge is right that democracies fall due to institutional collapse, they can also be destroyed if they “are captured by illiberal or anti-democratic forces”, the antidemocratic forces being, according to his reasoning, the entire Republican Party
Curiously enough, both Millhiser and Breyer are factually right in parts of their argument. A majority (56%) of Americans consider that the Court is neither “too conservative” nor “too liberal’, according to a Pew Research poll conducted last year, something that Breyer intends to keep.
However, it is also true that Democrats are more likely than the general population to think that the Court is too conservative, with 47% of Democrats saying that in contrast to 30% of the general population. It is also important to note, nevertheless, that an equal 47% of Democrats think that the Court has a “middle of the road” approach to the cases it takes.
In other words, while Chemerinsky and Millhiser are concerned that the Courts are too partisan and have become sequestered by the GOP, it appears that not even the majority of the Democratic Party agree with that diagnosis.
If a majority of the population is both satisfied with the work done by the court and thinks that it is in the “middle of the road” politically (including half of the Democratic party) why then defend a move that would openly politicize the court?
A new court with that composition would uphold more liberal policies (until the GOP packs it in response) but at what cost? Republicans would see the court as being too liberal, and the general population would view SCOTUS as just another political forum where affiliation to the party is the most defining characteristic.
If the ultimate judge of our system is considered to be too partial, then there are no incentives for each party to obey its rulings, leaving brute political force as the only way to decide political questions. Imagine a scenario like the 2000 elections but with a Supreme Court that cannot be effectively relied upon to deliver an ultimate judgement that would be respected by both parties.
Packing the courts would only dilapidate the trust the majority of the people have over the judiciary, it would force the GOP to also pack the courts once they regain power, and it would effectively diminish the legitimacy of a body that relies solely on legitimacy to enforce its rulings, as the courts do not handle budgets nor armies.
All in exchange for what? A few years of liberal dominance in the court that would surely be erased after the GOP packs the courts again? It does not seem like a deal worth taking.