He added, “Structural changes motivated by the perception of political influence can only fuel that latter perception and further undermine that confidence.”
On this point, Breyer repeated the late judge Ruth Bader Ginsburg, who in 2019 spoke out even more decisively against a court hearing:
“Nine seems like a good number. It’s been like that for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to grab the court …”
Roosevelt’s proposal would have given him six additional Supreme Court appointments and expanded the court to 15 members. And Ginsburg sees a similar plan as very damaging to the court and the country.
“If anything made the court look biased,” she said, “it would be – one side said,” When we are in power we will increase the number of judges so we have more people who would vote like this as we want it. ‘””
That affects the idea of an independent judiciary, she said.
Ginsburg’s fears that the trial would undermine the independence of the judiciary, and therefore judicial review, seems to me a more pressing concern than Breyer’s concern that it would merely undermine public confidence in the Court, even though the two questions are obviously linked .
Breyer’s criticism of the trial – like Ginsburg’s before him – could possibly be dismissed as self-interested. Finally, any increase in the size of the Court inevitably diminishes the influence of the current Supreme Court justices. On average, a single judiciary in court with eleven or fifteen members has less influence than if the court membership remained at nine.
But in Breyer’s case, such selfish tendency is probably not a major factor. The scuttlebutt in legal circles suggests he could potentially retire this year to give Biden a chance to appoint a Liberal successor while the Democrats are still constraining the Senate. That is surely what many liberals want from him. Even if he chooses to stay longer, Breyer certainly knows that by the age of 82, he is unlikely to have many years to serve. As such, concerns about his personal influence are unlikely to be the key factor behind his rejection of the trial.
Ginsburg and Breyer are by no means the only prominent left-wing critics of the trial. I’ve noted some other examples here.
I’ve written in more detail here, here, here, and here about the dangers of trial, including allegations that this is an appropriate response to Republicans’ skull-digging in the judicial nomination process, such as their hypocrisy for refusing to speak about a Vote nomination in an election year in 2016, while shortly before the 2020 election one is quickly enforced. I also turned down a failed Conservative proposal to grab the lower courts in 2017, which prompted my first foray into the matter.
For reasons I summarized in January, the Biden government is unlikely to push for trials in the near future, or to pass Congress even if Biden makes such a push. However, as explained in the same post, the idea has become part of mainstream politics and is unlikely to go away completely for some time.