In 2008, the U.S. Supreme Court told President George W. Bush that fighting a global war on terrorism did not entitle him to evade constitutional limits on his authority. 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 he said the Court was dead wrong and his administration would not be bound by its erroneous judgment? What if subsequent presidents followed Bush's lead and ignored the judicial branch whenever their own favored policies happened to lose in federal court?
Such counterfactual scenarios 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). The 83-year-old Supreme Court justice is well aware that many modern liberals want President Joe Biden to pack the Court with new members for the express purpose of creating a new liberal supermajority. Breyer thinks those 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, liberalism itself will 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 affirmed Cherokee control over Cherokee territory. Jackson defied the ruling by sending federal troops to forcibly remove the Cherokee people from their territory via the infamous Trail of Tears. The rule of law suffers when the political branches ignore the judiciary's judgment. People suffer too.
Breyer worries that today's liberal court packers could severely weaken 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 court packing's biggest dangers is that it will undermine that general tendency.
Breyer asks us to imagine what American history would look like without basic political and public support for the Court's decisions: 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 they will, what will stop a socially conservative state legislature from prohibiting gay marriage, despite the Supreme Court's clear 2015 ruling against such bans in Obergefell v. Hodges?
Breyer's message is clear and convincing: Liberal court packers should be careful what they wish for.