In remarks prepared for a speech at Harvard Law School, Breyer wrote that the court’s authority depends on “a confidence that the court is governed by a legal principle, not politics.”
He added: “Structural changes motivated by the perception of political influence can only give birth to this perception and further erode that confidence.”
Some Democrats and liberal activists say adding seats to the court is the only way to stump the court’s conservative majority.
They claim that it is a correct and logical answer to what they say was a kind of court package of Senate Republicans. The GOP-led Senate refused to fill a vacancy opened during Barack Obama’s presidency and rushed to confirm justice for Amy Coney Barrett just days before the presidential election, in which Trump was likely to lose.
But Breyer has been cool with the idea in the past – just like other judges. He said his intention in the lecture – named after the late Justice Antonin Scalia – was to “get those whose original instincts can favor important structural or other similar institutional changes, such as forms of ‘court package’, to think long and hard before incorporates these changes into the law. ”
He acknowledged that judges are nominated by political parties because of their legal philosophies, and that politicians, the media and the general public generally regard them as conservative or liberal.
But, he said, proposed structural changes in the judiciary could only deepen mistrust.
“If the public sees judges as ‘politicians in clothes’, its confidence in the courts and in the rule of law itself can only diminish and diminish the power of the judiciary, including its power to act as a ‘control’ over the other branches. ,” he said.
The court is widely recognized for having a 6 to 3 Conservative majority, but Breyer even took issue with it. He pointed to the judges’ decision to defy Trump’s insistence that it get involved in the results of the recent election.
“The Court’s decision in the 2000 presidential election, Bush v. Op, is often cited as an example of its favoritism for conservative reasons, ”Breyer said. “But the court has not heard or settled cases affecting the political disagreements that arise as a result of the Trump election against Biden in 2020.”
Trump has said the court, which includes three of his nominees, showed a lack of “guts” and failed conservatives.
Breyer also noted liberal victories in court.
“It maintained the constitutionality of Obamacare, the health program preferred by liberals. It again confirmed precedents that favored a woman’s right to abortion. It found illegal immigration, census and other orders, rules or regulations, favored by a conservative president, ”he said according to the prepared remarks.
Breyer acknowledged that “at the same time, it took other decisions that can reasonably be understood as favoring” conservative “policies and unfavorable” liberal “policies. These considerations convince me that it is wrong to regard the court as a different political institution. . ”
Breyer, 82, is the court’s oldest justice and has his own political considerations to take. He was nominated to court in 1994 by Democratic President Bill Clinton and is under significant pressure to retire now, while another Democrat, Joe Biden, is in the White House and Democrats have tight control over the Senate.
Many Democrats and liberal activists are urging him to publish a statement soon; Biden has said when there is an opening, he will appoint the court’s first African-American woman.
Justice Ruth Bader Ginsburg resisted similar calls for retirement when Obama was president, and her death last September at the age of 87 gave Trump the chance to nominate Barrett, who just turned 49.
Breyer gave no hint in his speech as to whether he was considering resigning.