“What Goes Around Comes Around”: Justice Breyer Again Warns Against Court Packing

Justice Stephen Breyer has been a target of liberal groups for months as billboards and commentators call for his immediate resignation. It has backfired with Breyer pushing back on such pressure and reaffirming that he will stay on the Court so long as he is capable of carrying out his duties. Breyer has also opposed the same groups and a number of leading Democrats pushing for court packing.  Breyer just reaffirmed his position (and that of other justices like the late Ruth Bader Ginsburg) in opposition to court packing.


Breyer was asked by Fox News’ Chris Wallace in a Sunday interview about increasing the size of the Court and Breyer responded “One party could do it, I guess another party could do it. On the surface, it seems to me that you start changing these things around, and people will lose trust in the court.”

Breyer struck out at court packing in an interview on Friday with NPR, noting “What goes around comes around. And if the Democrats can do it, the Republicans can do it.”

The Court itself seemed to be sending a message with a serious of unanimous and heavy majorities in the last term that the claims of a rigidly divided Court are overblown. Most cases do not show such deep ideological divisions.

President Joe Biden has refused to state his position on court packing and has assembled a commission to make a recommendation on the subject.

Breyer previously warned against any move to expand the Supreme Court. He also rejected the characterization of the current Court as “conservative” or ideologically rigid. Breyer was swiftly denounced by figures like cable news host Mehdi Hasan who called him “naive” and called for his retirement. Demand Justice, a liberal group calling for court packing, had a billboard truck the next day in the streets of Washington warning “Breyer, retire. Don’t risk your legacy.” (Demand Justice once employed White House press secretary Jen Psaki as a communications consultant, and Psaki was on the advisory board of one of its voting projects.)

Breyer’s warning of a retaliatory move by Republicans to engage in the same court packing has already been addressed by leading academics. Harvard professor Michael Klarman and others have not been subtle about the need to pack the court to guarantee an immediate liberal majority. Klarman has said the court must be changed to enact the Democrats’ sweeping agenda — and Democrats shouldn’t worry about Republicans responding with their own court packing if they return to power. Indeed, he explained, the point of changing the system with “democracy-entrenching legislation” is to guarantee that Republicans “will never win another election” unless they fundamentally change their views. Klarman conceded that “the Supreme Court could strike down everything I just described,” so the court must be packed in advance to allow the desired changes to occur. [You can read Klarman’s full comments here]

In his interviews, Breyer has shown far greater courage and principles than Biden. As previously discussed, Biden has not been known as a politician who is motivated by such principles. Thomas Jefferson once advised his successors that “on matters of style, swim with the current, on matters of principle, stand like a rock.” Breyer continues to stand like a rock in the face of a campaign to force him off the Court and then pack the Court with an immediate liberal majority. His opposition is not due to any lack of liberal credentials. He is one of the most consistently liberal justices in the history of the Court, but he remains a justice of the Court first.


118 thoughts on ““What Goes Around Comes Around”: Justice Breyer Again Warns Against Court Packing”

  1. The greatest “court packing” was when Republicans denied Obama and us voters about 100 federal judge picks and a U.S. Supreme Court pick. Voters (of all parties) gave Obama that authority to appoint judges and justices. Republicans not only robbed Obama but robbed the voters as well.

    1. You want law?

      90% of parasitic, dependent, democrat voters are illegal aliens, and similarly illegal-alien descendants of illegal aliens.

      Crossing the international border is a crime; no individual shall benefit from the commission of a crime and chain migration is illicit immigration.

      Ratifying multiple rushed amendments with a gun to the heads of Americans under brutal military occupation is not part of the constitutional amendment process.

      Upon issuance of the unconstitutional emancipation proclamation, freed slaves must have been deported per the Naturalization Act of 1802.

      “I’ll have those ——s voting democrat for 200 years.”

      – Lyndon Baines Johnson

    2. The Senate is not bound by any time constraints in the Constitution when providing “…advice and consent…” to the President.

      The President is not bound by any time constraints in the Constitution while exercising his power to appoint “judges of the Supreme Court,….”

      The President is bound to wait for the “…advice and consent…” of the Senate.

      Actions must be completed only before any related, subsequent actions are required.

      Article 2, Section 2

      [The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court,…

  2. Thinkthrough’s Fact-Free Argument

    Thinkthrough writes:

    “If you were a politician and there was no Electoral College why would you care about any other of the states other than New York and California. The influence of these to states would rule your nation. Good luck with that”.

    Thinkthrough hasn’t looked at state populations in more than 40 years. Texas has been the nation’s second most populous states since the 1980’s. Texas, with about 30 million people is considerably bigger than New York which has only 19 million people.

    In fact, Florida, our third most populous state, with about 23 million people, surpassed New York about 15 years. So this trite claim that California and New York would dominate presidential elections, without the Electoral College, is based on long-outdated population stats.

    1. “So this trite claim that California and New York would dominate presidential elections, without the Electoral College, is based on long-outdated population stats.”

      Your reply is based on a facile (and probably dishonest) use of statistics.

      Without an Electoral College, the issue is the percentages of those populations (in Texas, Florida, California, and New York) who vote R vs. D. When you compare the 2020 presidential votes in Texas and Florida, on the one hand, with California and New York, on the other — you get a net gain for Democrats of some *6 million* votes.

      That, of course, gives CA and NY an outsized influence over a majority-rule presidential election. And TT is right.

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