Stephen Breyer Makes the Liberal Case Against Court Packing

In his new book, the 83-year-old justice warns court-packing advocates to “think long and hard before embodying those changes in law.”

In 2008, the U.S. Supreme Court told George W. Bush that fighting a global war on terrorism did not entitle the president to evade or ignore the requirements of the Constitution. That decision, Boumediene v. Bush, would go down in the books as one of the most significant modern rulings against wartime government power. "We'll abide by the Court's decision," Bush said. "That doesn't mean I have to agree with it."

What if Bush did not abide by the Court's decision? What if Bush said the Court was dead wrong and that his administration would not be bound by its erroneous judgment? What if subsequent presidents followed Bush's lead and ignored the Court whenever their own favored policies happened to lose?

Such what ifs are the driving force behind Justice Stephen Breyer's timely and important new book, The Authority of the Court and the Peril of Politics (Harvard University Press). The 83-year-old Supreme Court justice is well aware that many modern liberals want President Joe Biden to pack the Court and create a new liberal supermajority. Breyer thinks those liberal court packers are being both dimwitted and shortsighted. "Think long and hard," Breyer warns them, "before embodying those changes in law."

Court packing is a naked power grab and an attack on the independence of the judiciary. It is a tit-for-tat race to the bottom. One party expands the size of the bench for nakedly partisan purposes, so the other party does the same (or worse) as soon as it gets the chance. Breyer understands this. He also understands something else: If the authority of the Supreme Court is trashed and squandered by court packing, then liberalism itself is going to suffer in the long run.

Let history be our guide. President Andrew Jackson flatly ignored the Supreme Court's 1832 decision in Worcester v. Georgia, which ruled in favor of Cherokee control over Cherokee territory. Jackson later sent federal troops to forcibly remove the Cherokee people via the infamous Trail of Tears. The rule of law suffers when the political branches ignore the judiciary's judgment.

Breyer worries that today's liberal court packers are going to severely undermine judicial authority and pave the way for the next Andrew Jackson. "Whether particular decisions are right or wrong," Breyer writes, "is not the issue here." The issue "is the general tendency of the public to respect and follow judicial decisions, a habit developed over the course of American history." One of the biggest risks of court packing is that it will reverse that general tendency.

Just imagine what American history would look like without basic political and public support for the Court's decisions, Breyer writes. What "would have happened to all those Americans who espoused unpopular political beliefs, to those who practiced or advocated minority religions, to those who argued for an end to segregation in the South? What would have happened to criminal defendants unable to afford a lawyer, to those whose houses government officials wished to search without probable cause?"

Or take your pick of hot-button modern issues. If the court packers wreck the Court, as Breyer fears that they will, what's to stop an anti–gay marriage legislature from banning gay marriage, despite the Supreme Court's clear 2015 ruling to the contrary in Obergefell v. Hodges? Is that the future that liberals want?

Breyer's message is clear and convincing: The court packers should be careful what they wish for.