By Amy Howe
on April 7, 2021
at 5 p.m.
Judge Breyer addresses the courtroom from the bank (Art Lien)
Stressing that the Supreme Court’s authority depends on public confidence in the court, Judge Stephen Breyer spoke out against efforts to increase the number of Supreme Court seats in a speech at Harvard Law School on Tuesday. 82-year-old Breyer argued that public confidence in the court lies in the public’s perception that “the court is rule of law, not policy,” and therefore would be undermined if the structure of the court was raised due to concerns as to the influence that would change the policy on the Supreme Court.
The text of Breyer’s prepared remarks, which he delivered in nearly two hours of speech, included references to the Roman philosopher Cicero, Shakepeares Henry IV, The Plague of Albert Camus, and Alexis de Toqueville, the French aristocrat who recorded American life in the early years 19th century. (Breyer, who is known to deliver speeches in French, did not indicate whether he read the latter two sources in English or in their original French.) The focus of Breyer’s speech, sometimes referred to as “court wrapping” , has been a popular topic with some Democrats, particularly since Justice Ruth Bader Ginsburg’s death in September 2020 when then Senate Majority Leader Mitch McConnell moved quickly to uphold Justice Amy Coney Barrett after refusing to hold a hearing on Merrick Garland, President Barack Obama’s candidate to replace Justice Antonin Scalia in March 2016. As a candidate, President Joe Biden declined to support an enlargement of the court and instead promised to set up a commission to investigate possible reforms of the Supreme Court should examine more fully.
Breyer’s opposition to the expansion of the court rests on his belief that the power of the Supreme Court depends on “the willingness of the public to respect its decisions,” even if they disagree. Breyer cited two factors that “give cause for concern” that the public will accept the court’s decisions. First, he noted, there was generally “a growing public distrust and distrust of all government institutions”. Second, there was a perception that Breyer characterized as a perception – attributed to the tendency of the press and politicians to refer to judges as “liberal” or “conservative” – that decisions are driven by politics rather than legal principles. Breyer added seats to the court to address the belief that the court was being overly politicized and concluded that “it can only nurture that perception and further undermine that trust”.
In the video published by Harvard, Breyer appears lively and energetic. He did not discuss any of the other popular issues among liberals: asking him to step down from the court so Biden can nominate his successor.
This post was originally published on Howe on the Court.