Supreme Court Justice Stephen Breyer during an address at Harvard Law School Tuesday spoke out against the practice of court packing, telling law students such a move could "further erode public trust and weaken the court’s influence."
Citing the rejection of former President Donald Trump's election challenge cases, Breyer defended the court's independence, saying he believes its authority "rests on a trust that the court is guided by legal principle, not politics.”
“If the public sees justices 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.
Breyer mentioned four decisions in which the court had disappointed conservatives, including the Affordable Care Act, abortion, the census and young immigrants.
In each of those 5-4 decisions, all that came prior to Justice Ruth Bader Ginsburg's death, conservative-leaning Chief Justice John Roberts Jr. voted with the liberal wing of the court.
“Structural alteration motivated by the perception of political influence would only feed that perception, further eroding that trust,” Breyer noted.
It is his hope to “make those whose initial instincts may favor important structural or other similar institutional changes, such as forms of ‘court-packing,’ think long and hard before embodying those changes in law.”
Throughout the 2020 campaign, President Joe Biden refused to answer questions about his position on court-packing.
During an October interview with CBS' "60 Minutes," Biden said, "The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations."
At the end of January, however, his administration set up a commission to study Supreme Court reform.
At that time, a White House official issued a statement that said Biden "remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks."
Under current Senate rules, 60 votes would be needed to (block the filibuster) and pass a bill to expand the Supreme Court.
Ohio State University Law School professor Peter Shane told WUSA9, however, that "Senate Democrats could block the filibuster with what’s known as the 'nuclear option,'" which is a change to a Senate rule for a specific item.
The nuclear option was used by then-Senate Majority Leader Harry Reid in 2013 to allow Democrats to confirm executive and judicial nominees (with the exception of Supreme Court nominees) with 51 senate votes.
Reid's move paved the way for his successor, then-Senate Majority Leader Mitch McConnell, to "go nuclear" for the express purpose of confirming Supreme Court nominees by a simple majority.
Breyer has served on the Supreme Court since 1994.
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