Justice Breyer Is Missing the Point on Court Packing

Justice Breyer is trying to close the barn door long after the horse of political judges has long galloped off. Photo: J Scott Applewhite/AP/Shutterstock/J Scott Applewhite/AP/Shuttersto

Justice Stephen Breyer has hurled a brushback pitch at those Democrats who have expressed interest in structural changes (e.g., expansion of the Supreme Court) to offset the recent surge in conservative representation on the Court. In remarks prepared for an event at Harvard Law School, Breyer defended the Court’s independence, as the Washington Post’s Robert Barnes reports:

Justice Stephen G. Breyer said Tuesday that proposals to expand the Supreme Court to dilute the power of its conservative majority risk making justices appear more political and could hurt the court’s influence with the public …

[P]roposed structural changes in the judiciary could only deepen distrust.

“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,” he said.

The court is widely acknowledged to have a 6-to-3 conservative majority, but Breyer even took issue with that. He pointed to the justices’ decision to defy Trump’s insistence that it get involved in the results of the recent election.

Taking this last contention first, rejecting Team Trump’s really poor arguments for reversing the results from 50 state certifications as confirmed by every lower court is not exactly airtight proof of nonpartisanship. Senate Republican leader Mitch McConnell dismissed the Trump claims as well, and nobody’s going to deny the Kentuckian is as partisan as the day is long.

More generally, Breyer is confusing remedies with a preexisting problem. For a variety of reasons, notably the division of the entire legal profession (or at least those members of it with the kind of ambitions that lead to the federal bench) into two competing camps that generally align with one of the two major political parties, the judiciary is already politicized. The Trump administration’s vetting operation for judges, and particularly for Supreme Court nominations, was hyperpolitical. Add in lifetime appointments, random patterns of deaths and retirements, and a Republican-run U.S. Senate that made “packing” the judiciary its highest priority, and you had the circumstances that revived the idea of expanding the judiciary to which Breyer objects.

The horse of partisan judges has long galloped past the barn door Breyer wants to close and lock. As a result, it will sometimes take political pressure to put limits on the politicization of the judiciary.

The original “court-packing” initiative is a case in point. FDR’s 1937 proposal to expand the Supreme Court was wildly controversial, often spurned by conservative Democrats, and unsuccessful legislatively. It led to the creation of the bipartisan “conservative coalition” in Congress that halted New Deal experimentation despite continued Democratic control of Congress. But it also arguably produced the “switch in time that saved nine,” the flip-flop by Justice Owen Roberts that began to let FDR’s legislation stand against conservative judicial challenges that had led to the court-packing scheme to begin with. Some historians think there were other reasons for the Roberts “switch,” and there’s no question that the backlash was powerful. But the fact remains that the credible threat of “structural changes in the judiciary” served as a warning to judges that coequal branches of the federal government would not tolerate the kind of grossly political ideology that governed the Court for four decades prior to 1937, making progressive social and economic legislation virtually impossible.

Given the Court’s current 6-3 conservative majority, controlled by justices carefully vetted before confirmation to serve as loyal foot soldiers of the conservative movement, we could be in for a similar era of politicized jurisprudence (notwithstanding Chief Justice John Roberts’s own fears of the Court looking too “partisan”). If Justice Breyer wants to mitigate the damage to the judiciary’s reputation, he would do well to make sure that 6-3 majority doesn’t expand to 7-2 via his own failure to retire while there is a Democratic president and Senate to replace him.

Justice Breyer Is Missing the Point on Court Packing