Justice Breyer Insists SCOTUS Isn't Political, Warns Against Court-Packing, and Doesn't Talk About R

[Calista241]

Source: Law and Crime

Justice Stephen Breyer, SCOTUS’s ever-agitated octogenarian, made a claim about the Court last night during a speech at Harvard: it’s not conservative, and everyone should stop using political terms to describe justices. Breyer gave a two-hour lecture at Harvard Law School Tuesday, at an event titled “The Scalia Lecture: The Authority of the Court and the Peril of Politics.”

During the speech, Breyer chastised journalists and politicians for referring to justices by the presidents who appointed them, as well as for describing them as “liberal” or “conservative.” Such labels, according to Breyer, “reinforce the thought, likely already present in the reader’s mind, that Supreme Court justices are primarily political officials or ‘junior league’ politicians themselves rather than jurists.”

A public perception that justices are beholden to political (rather than jurisprudential) beliefs is incorrect, Breyer insisted. As evidence of the Court’s apolitical nature, Breyer pointed to its refusal to take up the many lawsuits aimed at overturning the results of the 202o presidential election. According to Breyer, the Court’s decision not to take up Trump’s cause, even with its perceived 6-3 conservative majority, supports a conclusion that even its ruling in Bush v. Gore hadn’t been politically motivated. “Judicial philosophy is not a code word for ‘politics,'” the justice lectured.

...

Perhaps Breyer’s boldest move was directly speaking out against expanding the Court — a suggestion that has gained traction with many progressives after Republicans denied then-Supreme Court nominee Merrick Garland a hearing in an election year. Donald Trump went on to appoint Neil Gorsuch and Brett Kavanaugh to the Supreme Court, the latter after Anthony Kennedy announced his retirement. But the court-packing conversation reached new heights after Trump nominated — and the Mitch McConnell-led Senate confirmed — Amy Coney Barrett as the newest justice in an election year. Republicans wasted no time after Justice Ruth Bader Ginsburg’s death to make that happen. Still, Breyer warned that expanding the Court beyond nine members would threaten public trust in the institution that has been “gradually built” over centuries.

“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” he warned.

Read more: https://lawandcrime.com/supreme-court/justice-breyer-insists-scotus-isnt-political-warns-against-court-packing-and-doesnt-talk-about-retirement/?utm_source=mostpopular

[NoRethugFriends]

1. Based on the content of that speech

It's definitely time for him to retire.

[LymphocyteLover]

18. LOL, indeed. He seems deeply out of touch and/or detached from reality.

[Demsrule86]

28. He needs to retire before the midterm in case we lost the senate.

[Humanist_Activist]

2. I really wish these fools on the court would stop living in a goddamned bubble.

The court has always been political, and right now its extremely conservative. Look at the goddamned history of the court's decisions. Jesus fucking Christ.

[LymphocyteLover]

20. it's insane-- and this from a relative liberal justice who we need

[NewDayOranges]

3. Justice Breyer is full of $hit! Of course the Supreme

Court is political tilted toward conservatives!

Expand and pack the Court with Judges that rule with fairness and common sense. Expand the Court so that conservatives don't start partying when zliberal Justices die and swing votes are darn near impossible...

[oldsoftie]

15. You must've missed the Scalia party here when he died.

Packing the court will simply make it MORE political than it already is. Because whenever the Republicans have a majority, which WILL happen at some point, they'd just add that many more jurists. So the idiocy keeps on until we have a SCOTUS of 27 justices? 31? 47?
Even if i dont agree with some of the major decisions i dont think changing it to suit me is the right move. We only hear about the "big news" cases. But more often than not the decisions are 7-2, 8-1 (the "1" usually Thomas) & even unanimous.

[LymphocyteLover]

21. it depends on how the court acts in the next big cases. How can we tolerate it if they decide we

can't enact law to curb carbon pollution or can't enact something like medicare for all?

[oldsoftie]

32. Well, those laws would have to be PASSED first. EOs wont cut it.

As for MFA, I doubt it. Too many people who vote D also like their insurance & want to keep it

[cstanleytech]

25. Doing nothing though will not address the problem with the current imbalance with SCOTUS

and in fact doing nothing will probably simply embolden the Republicans to pack it even more.

[oldsoftie]

47. Thats true, but then they could have done it two yrs ago too.

Its just that once you start that ball rolling then there's never a reason to stop it. It just seems a short sighted "fix'.
How long will Thomas last? He is in his 70s. Considering its likely the Dems also win in '24, he may be replaced by a Democrat. Of course the Senate would need to remain "D" as well but that seems likely to happen as well.
I just worry when decisions are made with the appearance of "we'll always have the majority". ALways seems to bite you.

[cstanleytech]

49. They did it already though. They blocked Obamas choice and then changed the rules to ram through

their own choices for the open SCOTUS spots and now they have a 6 majority.

[quaint]

59. +infinity

[RandiFan1290]

44. Aww Bless your heart

I would love to go back and read what you had to say about his passing in 2016.

What was your former username?

[oldsoftie]

51. I think it was along the lines of "Wow, didnt see THAT coming"

And then waiting for the conspiracies to begin. Which didnt take long. Aided by no autopsy being performed. ALL the "proof" they needed!

[Judi Lynn]

45. Dirty old Scalia died in 2016. You got here in 2019. I don't recall the Scalia party at all.

I've been here for a very long time.

You should check yourself on attacking Democrats at the Democratic Underground, wouldn't you think?

[oldsoftie]

46. Oh please. "Attacking?" And maybe you could read these simple searches.

There are many differing opinions on many topics here. Most people can have discussions about those differences. Others, not so much.

https://www.democraticunderground.com/10027611633
Many folks trying to be gracious of RBGs opinion, and many enjoying the name calling & celebrating.
https://www.democraticunderground.com/?com=view_post&forum=1014&pid=1347379
Maybe scan down for the "Woo hoo!" thread
Plenty of others if you cared to read them. You likely did at the time.

Lots of people read here for yrs before signing up. I remember the Bush/Kerry race here.

[LakeArenal]

60. I don't really care what you qualify as "small" news cases.

They usually don’t affect my life.

The “big” news cases are the ones that hurt or help a political party. The ones that affect me.

[GB_RN]

19. Electoral-Vote.com Had A Suggestion

To solve this problem. Rather than packing the court, strip it of the power to hear constitutional cases; Congress has that authority. Then, Congress could then create a new, Constitutional Court, with justices who rotate in and out on say, a 10 year basis, so that no one party/president can create an ideological imbalance (at least not for long, anyway).

[Polybius]

40. That'll certainly take a Constitutional Amendment

Good luck ever getting 2/3rd of the House and Senate, and then 3/4ths of the states to agree.

[GB_RN]

50. Not Really

Hearing and ruling on appeals and constitutional cases - those outside its original jurisdiction, ie, cases between the states - was something the court took for itself in Marbury v. Madison. No one bothered to say “boo” about it, and this is what we have.

Congress has the power and authority to set/create any and all courts and their powers/jurisdiction, except the original jurisdiction of the SCOTUS (as written in the Constitution).

See the next guy’s response.

[Polybius]

58. Forcing Justices to rotate on the new "Constitutional Court" is the part I'm sketchy with

Either way, it would certainly be challenged. And guess who has the final say as to if it's constitutional or not? If the Justices frown on the new job and sudden loss of power, I can easily see a 9-0 ruling striking it down.

However, perhaps Congress can just create a higher court on its own, making the SC less powerful. So long as the Constitution doesn't say that the Supreme Court is the final say.

[GB_RN]

61. This Would Be Legal

From what I have read, as long as they have lifetime appointments as federal judges - which they do - so you just don’t monkey with that, and explicitly state it in the setup of the court. The Constitution does not require lifetime appointment to the court on which they currently sit, just that their appointments are lifetime. In fact, this was pointed out as one way to cure the SCOTUS situation.

[Polybius]

62. Of course, but the catch is that the final say is still theirs

They’ll just somehow rule any law limiting their power or transferring them as unConstitutional. Perhaps the ruling would be narrow, but that hasn’t stopped in hem before.

The point is moot anyway. It’s never gonna happen. There won’t be any rotation on other courts or any additional higher court. Maybe one day we’ll have 11 or 13 Justices, but that’s about all we can ask for.

[lastlib]

41. SCOTUS can't be stripped of its original jurisdiction embedded in Article III.

But Congress CAN eliminate its APPELLATE jurisdiction, and give that to a new court it establishes, eg, a national court of appeals. I've advocated for this on here. It's the only way I see to get around the tRump triumvirate of Gorsuck, BeerBoy and Amy Conehead.

[usaf-vet]

24. OF COURSE IT'S A CONSERVATIVE COURT! That is exactly what McTurtle has been doing since stealing..

... a nomination (Merrick Garland) from Obama.

Republicans have STACK THE COURT by hook or by crook as my grandmother would say.

Breyer might consider consulting a dementia expert to find out where he is on the scale.

Otherwise, I would say he is plain and simply delusional.

[PSPS]

4. LOL "would threaten public trust" That horse fled the barn a long time ago.

[lagomorph777]

5. He's unintentionally showing us why we need to expand the court.

[bringthePaine]

6. ok Stevie, wrap it up and get out! time for your pudding anyway...

[DonCoquixote]

7. that and I hoep he retires

by the time the next prez is in. Sorry RBG, I loved you, but you should have quit earlier so that Mitch would not have been able to stuff Amy down our throats

[oldsoftie]

17. I agree. Pres Obama really should've had that choice earlier on.

[modrepub]

8. If It's Not Political

Why did the Republicans try so hard to slow down democratic nominees and push theirs through in nearly record time? Given Democrats have held the executive longer over the last 30 years than Republicans, it's telling in my mind that the appointments are nearly split (overall) but lean Republican.

Now maybe some wiser minds in the federal court system know they can push lightly on the controls for fear of a major backlash from the public if their decisions are perceived as too one sided. But at some point the right-sided leaners are going to attempt to tip the whole kit and caboodle over to their side. Most of us aren't willing to wait for another citizens united type ruling to happen without reconsidering how judicial appointments are made.

[Butterflylady]

9. Sorry Justice Breyer, but that trust you're talking about,

well it left a long time ago. It done flew the coop.

[Demnation]

10. What a steaming pile of BS.

[andym]

11. History says otherwise

History demonstrates the SC has always been political.
It's good to have idealistic people like Breyer on the Supreme Court. However, the history of the SC clearly points to the court as being strongly influenced by the politics of the era that justices lived. The biggest problem is that the Constitution itself is a political document, grounded in the conflicting ideas and political needs of the time of its creation, so long ago. Using it as the ultimate authority in different eras with the possibility of amending it being so difficult, has and will create problems. Of course, it's not like there is a practical alternative either. To some extent we are thralls to history and its consequences.

[LymphocyteLover]

22. To a LARGE extent, we are thralls to history and its consequences.

Our politics is trapped right now by the electoral college and the legacy of racism.

[progree]

12. trust that has been gradually built over the centuries ... ... "further eroding that trust"

Breyer warned that expanding the Court beyond nine members would threaten public trust in the institution that has been “gradually built” over centuries.

“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” he warned.

Sounds kind of contradictory ... first he talks about public trust having been gradually built over the centuries, and then says "further eroding that trust". So it's been built up but now its being FURTHER eroded?

Maybe he should explain what has eroded it. Any scintillating insights on that, Justice Breyer?

[nuxvomica]

13. Good point

And if the court is by definition so apolitical, why would expanding it change that? It would just be a larger group of apolitical people.

[BradAllison]

14. He's not stepping down any time soon, is he?

Shit......

[VarryOn]

39. It doesn't sound like it. He's got it too good...

He's driven to the office every morning. Everyone pampers his ass constantly. Clerks write his opinions. Cocktail receptions happen all the time where starry-eyed legal eagles and pols gladly prompt him to pontificate on any subject. He's paid decently and can continue to do so whether he shows up for work mentally or physically. Hell of a deal. I wouldn't quit either.

[FBaggins]

55. Except that he can retire and keep almost all of that

The income doesn't change - and he can still hear cases at the appellate level if he wants to (including a clerk). He can "pontificate" even more.

[Ace Rothstein]

53. Doesn't sound like it.

We're gonna end up with another RBG situation in a few years. I wish their were mandatory retirement ages in the Constitution.

[NurseJackie]

16. 13 Justices NOW! Term-limits NOW!!

[turbinetree]

23. Okay I'll play the game why then was the Voting Rights Act attacked

by the federalist society John Roberts court, he hated the Voting Rights Act, this country currently have 6 mind you that are backed by the federalist society and this doesn't include the lower courts and three of the "jurists" worked on the Bush vs Gore outcome which was backed by the federalist society........... ... we the public are not mushrooms, we see what the political side of courts does.............and the US Supreme Court is a political institution always has been always will be .......

[GregariousGroundhog]

27. What would happen if a justice retired or died? Would it be three picks then?

[oldsoftie]

48. Seems reasonable.

[aeromanKC]

29. SCOTUS is already packed (And it IS Conservative)

McConnell has already packed the Court by "Stealing" 2 seats. (Not to mention the 3 that Gore v. Bush stole)

[stuffmatters]

31. This

[speak easy]

30. Time to go, Stephen

You are doing more harm than good with this sort of guff.

[milestogo]

33. Sounds pretty half-baked to me.

[Dawson Leery]

34. Expand the court to 21 members on a rotating retirement schedule

and limit them to 20 years (one generation) on the court.

[FBaggins]

36. You think we can get a constitutional amendment through?

That's what it would take to change the current lifetime appointment standard

[FBaggins]

35. Well... perhaps compared to the other branches

They certainly do a better job than the current Senate

[NewHendoLib]

37. what a steaming heap that is!

[MarcA]

38. He should have town halls with people other than

the Harvard Law School and Beltway orgs. Same should be required of the
rest of the Court as well. Yes, he should for the good of the nation retire ASAP.

[Mawspam2]

42. So the court isn't political...

...tell that to Barrett and The Boofer. Now thats a sitcom if ever I heard one.

[soldierant]

43. Raise your hand if

you think maybe Justice Breyer could use a refresher course in how to recognize a fact when you see one.

[Harker]

52. I don't need to be lectured about the non-political nature

of a court that includes three Trumpsky appointees.

[Mysterian]

54. Yeah, Clarence Thomas would never let his politics affect his decisions.

Good one, Stephen!

[dchill]

56. "Impeach Earl Warren."

On whose bumpers were those stickers?
In which states were those billboards?

Everything is political in government.

[Politicub]

57. He breathes rarified air. From his vantage point, he doesn't see that

progressives believe the court has been politicized. Or he doesn’t care. He’s a smart person, so it’s likely the latter.

It’s frustrating and depressing.

[Janbdwl72]

63. Breyer is supposed to be an intelligent man, but he is ignorant of history in two important ways

The first way has been well documented by previous posters above. I just add yes, the Supreme Court is political and yes, thanks to Mitch McConnell's horrible manipulation of the process to not allow Obama to replace Scalia, and to his and the Orange Maniac's rushing of Barrett to the Court, it is a 6-3 margin for conservative Republicans.

The second way is that he appears at this time to be leaning toward returning in the fall and not retiring now. The Democrats have a razor thin majority with Harris casting the tie-breaking ballot to get Biden's nominee confirmed. This majority was made possible when former Justices Brennan and Marshall decided not to retire when Carter was President, so they could have Democratic successors.

Yes, I think Marshall was a great man, a legal scholar and an outstanding judge, but he should have retired when Carter was President, and then we would not have wound up with Clarence "Doubting" Thomas on the Court.

Brennan had served for plenty of years and I know he did not want a judge appointed by a Republican taking his place.

Let's hope that Breyer does not fall into the same trap as Marshall and Brennan did. He has been there long enough--it is time to get another Democratic Justice on the court. He should not be ignorant of the history and what happened to Marshall and Brennan.

[maxrandb]

64. "Threaten Public Trust"??????????

It's too fucking late for that Stephen.

Talk to your buddy John Roberts. Maybe he can explain how he had no fucking clue racist-ass politicians would institute racist-ass voter suppression laws the very fucking second he decimated the Voting Rights Act.

Hell, reports are these laws were even written before the Supreme Court ruling came down.

But that's right Stephen, racism isn't a "partisan" issue, is it?

Funny, how a handful of rulings that the court handed down against Donnie Dipshit, are supposed to excuse a shit-ton of 5-4 rulings in favor of conservative causes.

Stephen Breyer- The Joe Manchin of Susan Collins'

[PlanetBev]

65. Nice excuse to hang onto your seat, Justice Breyer

Of course, you will live forever to hand down rulings, just like Justice Ginsburg.