Breyer Joins Late Colleague RBG in Opposing Court-Packing

As part of the Scalia Lecture series to Harvard Law School, U.S. Supreme Court Justice Stephen Breyer cautioned against structural changes to the Court on Tuesday. As reported by USA Today:

Supreme Court Justice Stephen Breyer warned Americans to think "long and hard" about structural changes to the nation's highest court, such as adding justices through "court-packing," in a wide-ranging address Tuesday.

Breyer, the court's second most senior associate justice, asserted such "alteration" would undermine confidence in the court's decisions, weakening its hard-won power to act as a check on presidents of both parties and Congress. The court's authority, he said, is based on the belief its opinions are driven by legal principle and not politics.

"Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust," Breyer, who has served on the court since 1994, said during a two-hour address at Harvard Law School. "There can be no shortcuts to it." 

Some may find it strange that the Democrat-appointed Justice Breyer is against changes to the Court such as packing the courts, but the late Justice Ruth Bader Ginsburg, a liberal icon, was also against the practice.

During his Harvard speech, Justice Breyer also pushed back against the narrative that the Court is a partisan institution. According to The Washington Post:

“It did uphold the constitutionality of Obamacare, the health care program favored by liberals. It did re-affirm 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,” he said, according to the prepared remarks.

Breyer acknowledged 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.”

Breyer is the oldest member of the Court at age 82 and is facing pressure from liberals to retire. As Carrie Severino points out, Justice Breyer's stance against court-packing will likely increase that pressure.