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.