Supreme Court Justice Stephen Breyer is not on board with the increasingly popular Democratic proposal to “pack” the Supreme Court, stating Monday that the current number of judges on the high court “seems to work.”
“I think nine is fine,” Breyer said at an event hosted by the Hill Center at the Old Naval Hospital in Washington, D.C. “I’m not speaking about anybody’s proposal. But I have discovered that nine seems to work,” he added.
If it ain’t broke, don’t fix it
Breyer was fielding questions from the event moderator and liberal talk radio host Bill Press when the discussion turned to packing the court, an extreme proposal favored by the far left to increase the number of justices on the Supreme Court until a liberal majority emerges.
Now that a clear conservative majority has been realized through the appointment of Justices Neil Gorsuch and Brett Kavanaugh, even establishment Democrats have considered radically altering America’s ranking judicial institution. At least five leading Democratic presidential candidates have made statements strongly in favor of court packing, embracing a tactic once considered too hot to handle for its troubling political implications.
Democrats are open about their selfish motives for seeking judicial reform. “Obviously, I’d like to see a court that is in line with my values. So would everybody else,” Democratic presidential nominee and South Bend, Ind. Mayor Pete Buttigieg said last month.
Like Buttigieg, former Texas congressman Robert “Beto” O’Rourke envisions a 15-member Supreme Court. “What if there were five justices selected by Democrats, five justices selected by Republicans, and those 10 then picked five more justices independent of those who chose the first 10?” O’Rourke asked. “I think that’s an idea we should explore.”
Not so fast
Breyer, however, believes that 15 justices on the high court is six too many. If anything is changed, Breyer argued that there should be fewer Supreme Court judges. The 80-year-old progressive justice pointed to the seven-member Massachusetts Supreme Judicial Court, which he said benefits from a “better number” of judges.
“Seven is fine. Eight is fine. Nine is fine,” Breyer said. “And it’s hard, you know, because these are not shrinking violets, any of the members of the court, and yet they are going to be helpful really when they produce opinions which have … five or more members signing on to those opinions.”
He continued: “Because basically the country is not — maybe a few reporters are — but the country is not interested primarily in what Sandra [Day] O’Connor or what I or David [Souter] or somebody else think of the Constitution. They want to know primarily what does the court think. They want to know primarily what does the Court think because that is what the law is, and that is what they will have to follow,” Breyer said.
“So, it’s very important to try and get those five on a single opinion. So, people who are strong-minded, definite individuals, have to also at the same time try to work together.”
“It works fairly well,” he said. “Not perfectly, but fairly well.
Even if Democrats were successful in their dream of packing the court with progressive-minded judges — a transformation which would require Democratic control of both Congress and the White House — their victory would be short-lived. As soon as Republicans returned to power, they would undoubtedly respond by arbitrarily packing the court with even more justices, and the cycle would continue indefinitely.
Payback
Unfortunately, throwing the Supreme Court into complete disorder is perfectly justifiable to many Democrats who feel they were unfairly treated in 2016, when Senate Republicans refused to consider President Barack Obama’s nomination following the death of Justice Antonin Scalia. “The tradition going back to the 1880s has been if a vacancy occurs in a presidential election year, and there is a different party in control of the Senate than the presidency, it is not filled,” Senate Majority Mitch McConnell explained at the time.
While Democrats took issue with McConnell’s line of reasoning, even if Obama’s nominee Merrick Garland had received a confirmation hearing, the Republican-controlled Senate would have merely rejected his appointment — and any others that followed — until the presidential race was complete.
Although Breyer is adamantly opposed to court packing, he did endorse another proposal popularized by the left in recent months — term limits. “I think it would be fine to have long terms, say 18 years or something like that, for a Supreme Court justice. It would make life easier. I wouldn’t have to worry about when I’m going to retire or not,” he said.
Many Democrats consider the imposition of term limits to be a more reasonable approach to curtailing conservative control of the high court. Thanks to President Donald Trump, the Supreme Court promises to lean right for the next 30 years, barring some unforeseen development.
By opposing blatant court packing while supporting term limits, Breyer is advocating for a gradualist approach towards altering the balance on the court. Is anyone listening?
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