Supreme Court Justice Stephen Breyer warned Democrats calling to expand the Supreme Court to “think long and hard” about the risk of politicizing the high court, The Washington Post reports.
Breyer did not comment on Republican efforts to block former President Obama’s Supreme Court nominee and stack the bench with religious conservatives instead but said during a speech at Harvard Law School that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”
“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” he said.
“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 added.
Breyer defends court’s independence:
Breyer argued that despite the court’s 6-3 majority, the court has shown independence by refusing to wade into Trump’s dubious legal challenges surrounding last year’s election.
“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.”
Breyer also noted that the court has ruled in favor of liberal priorities.
“It did uphold the constitutionality of Obamacare, the health-care program favored by liberals. It did reaffirm 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,” he said.
“At the same time it made other decisions that can reasonably be understood as favoring ‘conservative’ policies and disfavoring ‘liberal’ policies,” he added. “These considerations convince me that it is wrong to think of the court as another political institution.”
Breyer also criticized fellow justices:
Breyer also criticized his colleagues on the bench and urged more compromise and fewer dissents in the future, pointing to the court’s decision to allow churches to hold indoor services despite the coronavirus pandemic.
“Why would all members of the court not agree that a state can limit inside attendance but not forbid it entirely?” he said. “The answer could be that some judges believe that the state must be especially careful when imposing restrictions upon religious worship. Others might believe that freedom of religion must give way to a consensus of scientific opinion at times of significant risks to health.”
Breyer, who is 82 and has drawn calls to retire, gave no hints that he may step down in the near future.