Breyer: Expanding Supreme Court could hurt public trust

Justice Stephen Breyer on Tuesday said calls from some to expand the Supreme Court in order to dilute the current conservative majority would make the justices appear more political and damage the court’s influence.

The Washington Post reports that Breyer, 82, made the remarks in a prepared speech at Harvard Law School. The justice defended the court’s independence by pointing to its recent decision to decline lawsuits brought by former President Trump that sought to overturn the results of the election.

“The court’s decision in the 2000 presidential election case, Bush v. Gore, is often referred to as an example of its favoritism of conservative causes,” Breyer said, according to the Post. “But the court did not hear or decide cases that affected the political disagreements arising out of the 2020 Trump v. Biden election.”

The court’s authority depends on “a trust that the court is guided by legal principle, not politics,” Breyer added.

Conservatives currently hold a 6-3 supermajority on the court following the confirmation of Justice Amy Coney Barrett.

Breyer reportedly acknowledged that the judges are nominated by political parties based on their judicial philosophy, and that the public generally thinks of them as either conservative or liberal. However, he stated that structural changes would only serve to further 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,” Breyer said.

Breyer also held up apparent liberal victories as a reason to support the court’s independence from politics.

“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,” Breyer said in the prepared remarks, the Post noted.

President Biden, then a candidate, said in a “60 Minutes” interview last October that he planned to put a commission together to address court reform, though he specified at the time that it would not be a vehicle for “court packing.”

It was reported in January that the Biden administration had begun setting up that commission.

— Updated at 7:56 a.m.