Supreme Court

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.”

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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.

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  1. “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?”

    Federal troops are what stop state legislatures. If the same partisans control the federal troops and the state legislatures then you get Jim Crow laws for a century.

    1. You pining for the good old days strazzy?

      1. Would I mine seeing TX invaded by General Sherman and burned to the ground? I definitely think they should have hanged every one those Confederate traitors in 1865.

        1. What is it with leftists and genocide? If you want to hang the defeated, there’s no reason for them to surrender. Keep that in mind when you threaten states with federal troops. How many dead Americans is acceptable?

          1. I’m completely joking about sending Sherman into TX. My main point was that we’ve already seen all of these ‘”what ifs” before. And look what happened after the Civil War. They let the Confederate leaders off easy. 10 years later northern pieces of shit aligned themselves with the same Confederates and they got back in power and imposed damn near slavery 2.0 in half the country for the next century. In certain circumstances you have to crush mfers like they did in Germany and Japan. We are so much better off today because they crushed those rightwing movements in Germany and Japan. They should have crushed those Confederates. We’d be better country today had they dealt with that shit in 1865

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            2. rightwing movements in Germany and Japan

              National Socialists as rightwing. Right….

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        2. And then we’d have seen mass defections from the Unions cause, to Preserve the Union. Better to be Caesar then Pompey.

          1. That’s true. Lincoln even had trouble finding Generals willing to take the fight to the south.

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        3. You’d kill your own grandfather?

    2. Lard Full of Shit got triggered by that sentence all right.

    3. an anti–gay marriage [federal] legislature from banning gay marriage

    4. Decentralization of power is one tool to prevent one party or the other from ruling all branches of government, both horizontally and vertically. That does NOT mean “states rights” as Southern states define it. It does mean Senate terms are longer than House terms, presidents don’t have ultimate power, court appointees are for life, etc.

      More dangerous than the court packing is the trend to give more and more power to the president. Democrats wanted Obama to have all the power, then they got Trump. Republicans wanted Trump to have all the power, then they got Biden. Each time the president gets more and more power. It not only has to stop, it needs to roll back half a century. We are perilously close to the time when a president can say “fuck the election, I’m staying in power”.

      1. We are perilously close to the time when a president can say “fuck the election, I’m staying in power”.

        And a large percentage of the population cheers.

        1. “We are perilously close to the time when a nominee can say “fuck the people’s will, I’m stealing the election”.

          And a large percentage of the population cheers

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

    Think long and hard… AND THEN DO IT!

    1. I don’t think long and hard…ladies think of me and think long and hard.

  3. It would be simpler to just appoint me “Emperor of The Courts” with absolute power over all legislation and regulation.
    I could fix it all in six years.
    (I would take six years just to ease in the changes so the economy would have time to adjust)

  4. They don’t have to pack the courts. They could (i think but may be wrong) just limit their terms and jurisdiction. I think I favor undoing alot of the antidemocratic stuff in our system but I’m less opposed to placing limits on sovereignty.

    1. Changing the size of the Court can be done by mere statute. Limiting their terms would require a constitutional amendment.

      Changing the limits on jurisdiction gets more complicated – some limits can be applied by statute but anything big enough to be equivalent to court-packing would probably require an amendment.

  5. On the other hand, the Supremes have earned a lot of disrespect, for Dred Scott, Slaughterhouse, and Plessy; for bowing to Wilson and FDR and many many other Presidents; and for giving more respect to the made-up right to abortions than the enumerated right to keep and bear arms.

    What really needs disrespect is government, period.

    1. Don’t overlook Wickard!

      1. Filburn got jobbed.

  6. In other more relevant news (as the Dems court packing effort appears unattainable), a judge ordered a Jan 6th protester at the capital to return to jail because he used the internet in violation of the judge’s seemingly unconstitutional (and irrational) order.
    https://www.newsmax.com/us/capitol-attack-defendant/2021/09/02/id/1034807/

    Looks like at least one left wing judge wants to ban Republicans from exercising the first amendment of the US Constitution.

    1. Whining clingers are among my favorite culture war casualties.

      1. Women of Texas?

      2. Boring and repetitive. But then, that’s all you’ve got.

      3. Apostate reverends are my favorite lampshades.

      4. Artie got owned on Volokh and he’s still not smart. But very bigoted.

    2. A ban on internet & cellphone….. I literally wouldn’t be able to do my job or pay my bills.

  7. Breyer worries that today’s liberal court packers are going to severely undermine judicial authority and pave the way for the next Andrew Jackson.

    If Breyer were worried about the court’s authority, the court shouldn’t be letting such blatantly unconstitutional shit such as Bush v Gore, Citizen’s United, DC v Heller, and the latest Texas anti-abortion law slide. I mean, those rulings are “blatantly unconstitutional” aren’t they? That’s what I’ve heard them called, so obviously there are a lot of people who don’t seem to agree that the Supreme Court is the one who gets to decide whether something is unconstitutional or not. Some of them right here on this site, as a matter of fact.

  8. The Constitution and its constraints are only as strong as the society that values them. If these constraints are not valued, then the relevance of the Constitution will dissipate and the law along with it.

    A fractured society that cannot agree on the basic fundamentals of its own existence is not salvageable. The country is on its deathbed. The rule of law can only be respected by a society that has lived through the horrors of internecine war. So it shall be.

    1. I suspect that’s what the real result of an attempted court packing would be. Box four.

  9. It’s obvious that liberal want to pack the court only because they are not in the majority. If they were, and the conservatives wanted to pack the court they would cry foul and have all kinds of reasons why packing the court is wrong.

  10. One POTUS packing the court sees the next one of the opposite party just pack harder. An arms race of partisanship.

  11. Nothing was on bigger display of partisan (criminalistic) court packing than the Democrats during Amy Barrett hearings. They don’t give one pinch of respect to the U.S. Constitution or the Judiciary’s purpose.

    Of course they make no secret of it. Championing Democracy as a [WE] mobs rule theory to it’s very core.

    At least some Republicans want justices who know what the U.S. Constitution is and why the Judiciary exists. The ignorance of this subject is exactly why there is such a huge party-partisan battle going on right now in the USA. Far too many politicians who ignorantly believe they don’t have any law higher then themselves.

    1. How polite were Republicans to Merrick Garland?

      Oh they didn’t even allow him to sit for a hearing.

      1. Oh… So that’s why we have a judicial department.. To be polite?? lol..
        So it must be all good for Nazism to take over the USA so long as it’s done politely…

    2. At least some Republicans want justices who know what the U.S. Constitution is and why the Judiciary exists.

      I don’t think you are one of those Republicans. And the Republicans that do think that way aren’t the ones making decisions about who judicial nominees should be. The Republicans with power and influence over judicial nominees want conservatives and Republican partisans on the bench. They are only interested in winning the war to shape the judiciary in their image, not the Constitution.

      1. Considering most Republican questions were about interpretation of the U.S. Constitution and most Democrats questions were about cultural coercion, social norms and activists as well as some directly asking if nominee would support Constitutional fraud in the name of ‘living’ democracy.

        I’d say there’s quite a bit of bias in your analysis.

        1. I mean good grief; the last day the Democrats didn’t even care to show up but instead left emotional sympathy pictures to persuade the Constitutional Fraud they were pushing for in the name of “feelings”.

        2. Considering most Republican questions were about interpretation of the U.S. Constitution and most Democrats questions were about cultural coercion, social norms and activists as well as some directly asking if nominee would support Constitutional fraud in the name of ‘living’ democracy.

          You’ll have to be more specific than that, perhaps actually quoting examples of what you’re talking about. Otherwise, I would expect that you are simply remembering things through your own filters and impressions.

          Besides, conservative legal minds are great at saying the words that make it seem like they are just about interpreting the law and Constitution, but their agendas come through when they actually make rulings quite regularly. There are few examples more clear than the decision in Shelby County.

          Roberts had worked in the DoJ when he was young, having clerked for Chief Justice William Rehnquist, and wrote a lot of memos and talking points urging the Reagan administration to oppose key provisions of the Voting Rights Act when they were up for renewal. Ultimately, Reagan signed the re-authorization that included the preclearance provision (Section 5) and an amendment in Section 2 that allowed voting rights plaintiffs to prevail if they could show that a voting law had a disparate impact on minorities, rather than having to show that the legislature had a racist intent in enacting that law.

          Despite the Voting Rights Act, including Section 5, being renewed by Congress in 2006 and signed by President George W. Bush (who had appointed Roberts), the SCOTUS conservatives struck down Section 5 as being outdated in an opinion written by Roberts. All of the talk about judges not writing law meant nothing when it came time to help Republicans win elections. During oral arguments on Shelby, Scalia gave away the whole game.

          “I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia continued. “And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”

          Since Republican congressmen wouldn’t have the spine to change the law, the Supreme Court had to do it.

  12. “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.”

    Breyer is an antiquated Boomer and I’m going to call him the James Buchanan of the SCOTUS. No shit that’s how court packing works. The real problem is how ready and willing the American people are to do it. Insane politicians aren’t being elected by chance. Insane, hyper partisan people are voting for them.

    There’s a reason why many people fear civil unrest in the future. January 6th was small time by comparison.

  13. 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.

    For crying out loud, how can Root use the term “naked power grab” and not even mention what McConnell did to Obama’s nomination of Merrick Garland with nearly a year left in his term as President and then ramming through Amy Cohen Barrett’s confirmation in a month, with the final vote occurring a week before the election?

    It is just ridiculous to frame this as entirely a problem with what the Democrats might do and what damage that might do to the Court’s legitimacy.

    1. It’s just ridiculous to suggest Court packing would result in a tit-for-tat situation.

      Why do you pack the Court? So you can enact laws the Court would have struck down, and get away with it!

      What’s the first law you pass? Something to make sure the other side never has a chance to end up in power again!

      Nobody’s going to go to the trouble of packing the Supreme court, and forget to rig elections so that they don’t have to worry about losing anymore.

      1. Nobody’s going to go to the trouble of packing the Supreme court, and forget to rig elections so that they don’t have to worry about losing anymore.

        Nice of you to admit why Republicans were so adamant about approving as many judges with Republican backgrounds as possible to the federal judiciary. That way all of the gerrymandering, voting law changes, and other manipulations that they have been engaging in to keep Democrats from beating them won’t get overturned in court.

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