Breyer warns Democrats: "Think long and hard" before trying any SCOTUS court-packing

Welcome to Stephen Breyer’s TED Talk — or at least the Supreme Court justice’s very deliberate effort to school his fellow liberals. Breyer offered an ominous warning to Democrats plotting to “reform” the court, telling Harvard Law students that they should think “long and hard” before making any changes to the institution. Court-packing à la FDR would only exacerbate the politicization around it, and erode confidence in yet another American institution of government:

Politically driven change could diminish the trust Americans place in the court, Breyer said in the prepared text of a long speech he gave remotely Tuesday to Harvard Law School students, faculty and alumni.

His talk, Breyer said, “seeks to make those whose initial instincts may favor important structural (or other similar institutional) changes, such as forms of ‘court-packing,’ think long and hard before embodying those changes in law.” …

He noted, for example, that despite the court’s conservative majority, the court in the past year refrained from getting involved in the 2020 election, delivered a victory to Louisiana abortion clinics and rejected former President Donald Trump’s effort to end legal protections for immigrants who were brought to the United States as children.

Politico suggests that this might be some sort of farewell address. The same people who are pressing for “reform” of the Supreme Court have also been demanding that Breyer retire while Democrats control the Senate … more or less. They are still sore over Ruth Bader Ginsburg’s refusal to retire while Barack Obama had the authority to choose her successor rather than Donald Trump. At age 82 (83 in August), Breyer’s getting to the point where he might not be able to plan his exit if he doesn’t act soon to go out on his own terms.

So it could be a farewell address, but it might also signal that Breyer won’t go while these court-packing plans are being bandied about. Just going public with this warning is eye-opening, as Supreme Court justices tend to stay out of the way of political debates except in court documents. It’s at least a brushback pitch, and a warning from the dean of the court’s liberal wing that the efforts to make the federal judiciary just another area of coarse political sinecures is not appreciated, not even by the putative allies of such advocates. Breyer might be tempted to stick around long enough to maintain his influence against those plans, which would not make progressives happy at all.

The timing on this is curious, though. There was a lot of chatter among Democrats about court-packing and restructuring at the beginning of the year, but it’s been quiet on that front ever since. The momentum for such changes appears to have already dissipated; Breyer’s objections will make it even harder to resuscitate it. Did Breyer hear some rumblings of real action in the direction of “reform,” or did he just want to drive a stake through the heart of court-packing? Either way, the overall effect will almost certainly be the latter.

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