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Respectfully, Justice Breyer, court enlargers aren’t the problem

Rogue Valley

Facta Non Verba
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Apr 18, 2013
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Respectfully, Justice Breyer, court enlargers aren’t the problem


Supreme Court Justice Stephen G. Breyer is an engaging, intellectually serious advocate of judicial modesty and compromise. Some years ago, he put forward an admirable concept he called “active liberty.” It asked judges to recognize “the principle of participatory self-government” as the heart of the Constitution’s purposes. If I believed that today’s judicial conservatives shared Breyer’s inclination toward compromise and restraint, I might agree with his warnings last week against the movement to enlarge the Supreme Court. Unfortunately, most right-wing judges are not who Breyer wants them to be, and the court on which he serves is not as apolitical as he wishes it were. The Supreme Court faces a legitimacy crisis not because progressives are complaining but because of what they are complaining about: a reckless, right-wing, anti-democratic court majority, and a conservative court-packing campaign marked by the disgraceful Republican blockade against President Barack Obama’s nomination of Merrick Garland in 2016 and the unseemly rush to confirm Justice Amy Coney Barrett just before President Donald Trump’s defeat last November. So I respectfully dissent from the skepticism Breyer expressed about court enlargement in a lecture at Harvard Law School last week precisely because I share his underlying principles.

Breyer’s Harvard lecture offered a thoughtful historical argument for why protecting the court’s legitimacy is vital to protecting liberty. “If the public sees judges as politicians in robes,” he said, “its confidence in the courts and in the rule of law itself can only diminish, diminishing the court’s power, including its power to act as a check on other branches.” What Breyer declined to point out is that conservative justices are the ones who have turned themselves into party bosses through decisions such as Shelby County v. Holder, which gutted the Voting Rights Act, and Citizens United v. Federal Election Commission, which opened the floodgates to big money in politics. The irony for Breyer is that he must quit to give his own principles a fighting chance in the future. I’d be sad to see him go, but not nearly as sad as I would be if Justices Elena Kagan and Sonia Sotomayor were the only liberals left on the court. In his speech, Breyer declared that “the Constitution itself seeks to establish a workable democracy and to protect basic human rights.” That’s a bracing vision, and it’s what advocates of court enlargement are trying to protect.

Breyer has served in the SCOTUS for 27+ years. A long time by SCOTUS standards. Yet it doesn't seem to be enough for Justice Breyer who is 82 years old. He obviously wants to test fate, and if Republicans control the White House and the Senate when his old heart says enough, then too bad. He doesn't give flying fluck what happens to our liberal democracy after his name is chiseled into granite somewhere within the high court. That Breyer is willing to roll the dice does not speak well for his judgement.

The SCOTUS desperately needs reform. At the very least term limits and a balanced bench. We can no longer merely cross our finger s and hope that liberal Justices such as RBG and Breyer die at a convenient time.
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