Stephen Breyer Makes the Liberal Case Against Court Packing

The U.S. Supreme Court informed President George W. Bush in 2008 that he could not escape constitutional limitations by fighting a global terrorist war. This decision was made by the U.S. Supreme Court. Boumediene v. BushThe Court’s decision against wartime power would live in history as one of the most important modern rulings. Bush declared, “We’ll adhere to the Court’s verdict.” Bush said, “That does not mean that I must agree with it.”

But what if Bush refused to abide by that Court’s decision. Imagine if Bush said that the Court’s decision was wrong, and that his administration wouldn’t be bound by it. How would it be if Bush and subsequent presidents ignored the judicial branches whenever their favored policies lost in federal court?

Justice Stephen Breyer has written a timely, important book about counterfactual scenarios. The Authority of the Court, and the Risk of Politics (Harvard). This 83-year old Supreme Court Justice is acutely aware of the desire by many liberals for President Joe Biden’s packing of the Court with more members in order to create a liberal supermajority. Breyer believes that those court-packers are both blind and shortsighted. Breyer advises them to think long and deeply “before implementing those changes in law.”

Court packing is nothing but a power grab against the judiciary. This is a race to bottom, a tug-for-tat affair. A party may increase the size the bench to serve nakedly partisan ends, and then the opposing party will do the exact same thing (or worse) whenever it has the opportunity. Breyer knows this. Breyer also knows that liberalism will be affected if the Supreme Court’s authority is eroded by court packing.

History will be our guide. Andrew Jackson ignored 1832 Supreme Court decision. Worcester v. GeorgiaThis affirmed Cherokee sovereignty over Cherokee land. Jackson defied this ruling, sending federal troops into Cherokee territory to forcefully remove them via the Trail of Tears. When the ruling judiciary is ignored by the political branches, the rule of law can be undermined. People suffer too.

Breyer fears that today’s libertarian court packers may weaken judicial power and make way for Andrew Jackson. Breyer says that the question is not whether particular decisions were right or wrong. It is “the general tendence of the public, which has evolved over the course American History,” that makes the difference. Court packing poses the greatest danger to this general tendency.

Breyer invites us to imagine American history if there had been no basic political support and public support. He asks: “What would have happened to all Americans who held unpopular political views, those who advocated minorities religions, or those who supported segregation of the South?” What about criminal defendants who couldn’t afford lawyers, or those whose homes government officials wanted to search for probable cause?

Take your pick from the most current, hot-button issues. Breyer is concerned that the Court packers will destroy the Court. What will stop the socially conservative legislature in allowing gay marriage to be prohibited, despite the Supreme Court’s 2015 clear ruling in favor of such prohibitions? Obergefell v. Hodges?

Breyer is clear in his message: Liberal courtpackers need to be cautious about what they want.