Justice Stephen G. Breyer said something very obvious about Supreme Court authority.


But he's authoritative, and he's pushing back liberal politicos, and he said it in a speech at Harvard Law School, so it's news, reported here, at "Justice Breyer says expanding the Supreme Court could erode trust" (WaPo). 

In remarks prepared for a speech at Harvard Law School, Breyer wrote that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”

He added: “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

Some Democrats and liberal activists say that adding seats to the court is the only way to blunt the court’s conservative majority. They contend it is a proper and logical response to what they say was a form of court-packing by Senate Republicans....

In other words, "some Democrats" have made it clear that they want to use the Court as a political tool, and that's exactly why it would undermine the Court's authority. These Democrats are not the counterweight to Breyer's point. They are the foundation!  

“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,” he said.... “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. “But the court did not hear or decide cases that affected the political disagreements arising out of the 2020 Trump v. Biden election.... 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.... These considerations convince me that it is wrong to think of the court as another political institution.” 

That suggests he would favor Court-packing if the Court became too predictably conservative. Court-packing is a threat, and it works to check the Court's power, but it's best to keep it as a threat, and — look! — the threat is working. If Congress carries out the threat, it will end the delicate game. You'll get your liberal Court, but everyone will see it as a bunch of political hacks, and everything it does will seem like undemocratic, elitist activism. 

But surely "some Democrats" will respond: It already is a bunch of political hacks and undemocratic, elitist activism. Maybe there was a Q&A at the Harvard session, and if there was, I'll bet somebody challenged Breyer with an assertion like that. I'd like to hear how he'd put his answer into words because I've long been a big fan of Breyer's way of thinking out loud. His written speech looks perfectly banal, but when he strings his real-time thoughts together, he's magnificent.

So I can only imagine how he would answer, and I can't quite figure out how to imitate his impromptu speech pattern. I supposed he'd have to subtly acknowledge that people do already think that the Court is political, but they don't think it that much, they still maintain some belief that it is principled, and if you throw that away, the liberal majority you wanted so badly will not have the clout to do all the good things you were hoping for. Best to play the long, long game and fill the openings as they arise in the general operation of the forces of nature. Then add a chuckle-worthy remark about how he's 83 and getting nudged toward oblivion.

[Author: [email protected] (Ann Althouse)]


Tags: Supreme Court, Law, Congress, Senate, Court, Harvard, Biden, Separation of Powers, Gore, Trump, Bush, Harvard Law School, WaPo, Breyer, Stephen G Breyer, Ann Althouse, Justice Breyer, Court-packing

Source:  http://althouse.blogspot.com/2021/04/justice-stephen-g-breyer-said-something.html



Related:
July 13, 2016 at 8:27 AM Note on the constitutional controversy over Justice Scalia’s replacement