Justice Breyer: 'Structural Alteration' of SCOTUS Will Erode Trust That 'Court is Guided by Legal Principles'

By Emma Riley | April 16, 2021 | 10:24am EDT
Supreme Court Associate Justice Stephen Breyer.  (Getty Images)
Supreme Court Associate Justice Stephen Breyer. (Getty Images)

(CNS News) -- Perhaps in anticipation of lawmakers' attempts to expand the number of justices on the Supreme Court, Associate Justice Stephen Breyer said in a speech at Harvard Law School that "structural alteration" of the high court could erode the trust Americans have that the "court is guided by legal principle, not politics."

Democratic lawmakers introduced legislation on Thursday, April 15, to expand the number of Supreme Court justices from 9 to 13.

In his April 6 speech at Harvard Law School, Associate Justice Stephen Breyer — the court’s senior Democratic appointee — said that advocates of court-packing and other structural changes in the court should “think long and hard before they embody those changes in law.”

Breyer said that the court’s authority relies on “a trust that the court is guided by legal principle, not politics.” He then warned, “Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.”

Former President Franklin D. Roosevelt (D), whose scheme to pack the Supreme Court to ensure his socialist policies would be upheld was defeated in 1937.  (Getty Images)
Former President Franklin D. Roosevelt (D), whose scheme to pack the Supreme Court to ensure his socialist policies would be upheld was defeated in 1937. (Getty Images)

Justice Breyer used court decisions as an example to support his view. Specifically, decisions made to end segregation during the Civil rights era.

“The court had played, not the only role, but one essential role in ending legal segregation,” Breyer said. “The justice of the court’s integration decision helped, in my opinion, to draw respectful and increase the authority of the court.”

 “My examples warn against taking that acceptance for granted,” he said. “Well, if we cannot take --and we are on part two now--if we cannot take the court as unchecked, and if we cannot take that acceptance by the public for granted, how can we build or maintain a system that makes acceptance more likely?”

(Getty Images)
(Getty Images)

Breyer continued “The rule of law has weathered many threats, but it remains sturdy. I hope and expect that the court will retain its authority--an authority that my stories have shown was hard won. But that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics.”

“Structural alteration motivated by the perception of political influence can only feed that latter perception,” he said. “Further eroding trust, there is no shortcut. There’s no shortcut. Trust in the courts without which our system cannot function requires knowledge. It requires understanding. It requires engagement. In a word, it requires work. Work on the part of all citizens. And we must undertake that work together,” Justice Breyer concluded.

Former Associate Justice Ruth Bader Ginsburg, who died last fall from cancer, was known as one of the most liberal members of the high court. But she also opposed packing the court.

In a July 24, 2019 interview with NPR’s Nina Totenberg, Ginsburg said, "I have heard that there are some people, on the Democratic side, who would like to increase the number of judges.”

"I think it was a bad idea when President Franklin Roosevelt tried to pack the court," added Ginsburg.

If FDR's plan had been put in place, she said, "the court's number would have swelled immediately from nine to 15, and the president would have six appointments to make."

"If anything would make the court look partisan, it would be that," said Ginsburg, "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.'"

"So, I am not at all in favor of that solution," said Justice Ginsburg. 

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