Justice Stephen Breyer, one of three liberal justices on the Supreme Court, warned against “court-packing” — expanding the number of justices to gain a political advantage — during a lecture at Harvard Law School on Tuesday.
During last year’s presidential campaign, Joe Biden repeatedly declined to answer whether he supported adding justices to the Supreme Court.
At a campaign stop in Phoenix in October, the Democrat said, “You’ll know my position on court-packing when the election is over.”
After Biden took office in January, he moved forward with plans to create a bipartisan commission to study “reforms” to the Supreme Court and the federal judiciary as a whole.
The commission has been tasked with releasing a report on its recommendations within 180 days of being formed.
Breyer addressed his concern that packing the Supreme Court would erode public respect for the institution and the rule of law in his Tuesday lecture, which was titled “The Authority of the Court and the Peril of Politics.”
“Our power, the court’s power, like that of any tribunal, has to depend upon the public’s willingness to respect its decisions,” Breyer said early in his remarks.
“Proposals have been recently made to increase the number of Supreme Court justices. I’m certain that others will discuss related political arguments,” the justice said.
“This lecture reflects my own effort, however, to be certain that those who are going to debate these questions, and related proposals, also consider an important institutional point,” he said.
“Consider it. Namely, how would court-packing reflect and affect the rule of law itself?”
Breyer, who at 82 is the oldest member of the court, warned politicians against being caught up in the heat of the moment when considering the future of the court.
“What I’m trying to do is make those whose initial instincts may favor important structural change or other similar institutional change, such as forms of court-packing, think long and hard before they embody those changes in law,” he said.
The Constitution gives Congress the authority to decide how many justices sit on the Supreme Court; however, the number has been nine since 1869.
Democratic President Franklin Roosevelt backed legislation to add justices in the 1930s when the court struck down some of his New Deal legislation.
The Judicial Procedures Reform Bill of 1937 would have allowed him to “appoint up to six additional justices … for every justice older than 70 years, 6 months, who had served 10 years or more.”
Breyer recounted that given the ages of the justices, it would have given Roosevelt the immediate authority to appoint six new justices to the Supreme Court, cementing a majority that supported the New Deal.
“Most people understood the true object of the plan was packing the court,” Breyer said.
A majority of the public did not support the bill.
However, the Supreme Court, with the legislation still under consideration, started issuing rulings favorable to the Roosevelt administration’s agenda, and one of the justices retired at the end of 1937.
Congress ultimately never voted on the proposed court-packing scheme.
“It no longer seemed necessary,” Breyer said.
Some called it “a switch in time to save nine” as the total number of justices on the high court.
“The court’s driving jurisprudential view changed, so who won?” Breyer asked.
Maybe that’s part of Biden’s and the Democrats’ gambit. Even if they never do increase the number of justices, the mere threat of it and the impact it would have on the court’s perceived authority will incline justices to not strike down any of the Democrats’ radical liberal agenda for America.
In a 2019 NPR interview, then-Justice Ruth Bader Ginsburg offered concerns about court-packing similar to those Breyer raised in his Harvard address.
“I think it was a bad idea when President Franklin Roosevelt tried to pack the court,” she said.
“If anything would make the court look partisan,” Ginsburg added, “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.’”
Biden, while serving on the Senate Judiciary Committee in 1983, called Roosevelt’s court-packing plan a “boneheaded” idea.
“It was a terrible, terrible mistake to make,” he said.
“And it put in question for an entire decade the independence of the most significant body, including the Congress in my view, the most significant body in this country: the Supreme Court of the United States of America.”
So if Breyer, Ginsburg and Biden (at least in 1983) all saw how wrong court-packing would be, fellow liberals and all members of Congress should take heed of that counsel.
The respect of the Supreme Court and the rule of law itself truly depend upon it.
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