On Wednesday, President Biden’s commission will hold its first public session at the Supreme Court. (I signed up for Zoom). I’m pretty sure Justice Breyer will do this Not be invited to testify. His new book throws the Court Packers the gauntlet.
Adam Liptak has the details:
Judge Breyer has particularly insisted that politics should not play a role in the work of judges, and he recently suggested that it should not be included in their decisions about when to retire.
“My experience of more than 30 years as a judge has shown me that once men and women take the oath, they take the oath to heart,” he said in a lecture at Harvard Law School last month. “You are loyal to the rule of law, not the political party that helped secure your appointment.”
In the speech, the version of which will be published in September as a book entitled “The Authority of the Court of Justice and the Danger of Politics,” Judge Breyer said that the smell harms the partiality of the judiciary.
“When the public sees judges as politicians in robes,” he said, “it can only decrease their confidence in the courts and the rule of law itself and diminish the power of the court.”
Here is the description of his new book:
A sedentary judiciary reflects the authority of the Supreme Court – how that authority was obtained and how Measures to restructure the Court of Justice could undermine both the Court of Justice and the constitutional system of scrutiny that is dependent on it.
A growing chorus of officials and commentators argue that the Supreme Court has become too political. In this view, the validation process is just an exercise in setting the party’s political agenda, and lawyers are no more than “robed politicians” – their supposedly neutral legal philosophies are merely a cover for conservative or liberal beliefs. As a result of this perceived crisis, and for the first time since the New Deal era, there is serious talk of litigation in the name of ideological balance.
Justice Stephen Breyer issues a cautionary note. Given the history of the Court of Justice, he suggests that the hard-won authority of the judiciary is undermined by reforms based on the assumption of ideological bias. The Tribunal, as Hamilton noted, “had no control over the sword or the purse” and earned its authority by granting impartial justice and thereby garnering public trust. If the public’s confidence is now declining, the solution is to foster a better understanding of how the judiciary really works: The judges mostly keep their oath to avoid political and popularity considerations. The danger for the Supreme Court comes less from partisan judges than from citizens, who, encouraged by politicians, equate impartial justice with acceptable judicial outcomes.
Breyer warns that political intervention would undermine public confidence, which would undermine the court’s authority. Without public trust, the Court of Justice would no longer be able to control the other branches of government and guarantee the rule of law, which threatens the very foundations of our constitutional system.
You hear that Dean Chemerinsky? Judges should “Hold on to their oath to avoid politics and popularity considerations. “You hear that Court Packers? There’s only a ‘perceived crisis’ to get support for ‘Court Packing in the Name of Ideological Balance’. You hear that Senator Whitehouse? Politicians shouldn’t”equate impartial justice with acceptable judicial outcomes. ”
Justice Ginsburg refused to step down because of her narcissism. Judge Breyer refuses to step down on his principles. My respect for justice Breyer continues to grow. It has a steel backbone. I wish some of the Conservatives would exemplify that steadfastness.
The book will be released on September 7th. I have pre-ordered my copy.