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Justice Breyer argues against expanding the Supreme Court

Advocates of court packing should “think long and hard before embodying those changes in law," he said.
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/ Source: The Associated Press

Adding more members to the Supreme Court risks undermining public confidence in the court’s decisions, Justice Stephen Breyer warned this week.

In a speech at Harvard Law School released Wednesday, Breyer said the court’s authority depends on trust that it is guided by legal principles, not politics.

“Structural alteration motivated by the perception of political influence” would erode that trust, he said.

Advocates of court-packing, Breyer said, should “think long and hard before embodying those changes in law.”

Some Democrats have advocated adding more seats to the court bench to counteract its shift to the right after three appointments made by former President Donald Trump. President Joe Biden yielded to the pressure by agreeing to appoint a commission to study proposals for changing the federal judiciary, but said he is “not a fan of court packing.”

Breyer’s speech delved into a favorite subject for him: why the public abides by Supreme Court decisions even though the court has no mechanism for enforcing them. He concluded that the court has gradually developed a sense of trust that its rulings were based on the rule of law, rather than partisan political considerations.

That is why, he said, the public is willing to accept even judicial decisions with which it disagrees. Examples from the court’s long history “warn against taking that acceptance for granted,” he said.

In the remarks, Breyer said nothing about his own plans. At 82, he is the court’s oldest member, and some liberal activists have urged him to step down while Democrats control both the White House and the Senate.