Breyer says expanding Supreme Court could erode trust, proponents should 'think long and hard'

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Justice Stephen G. Breyer

U.S. Supreme Court Justice Stephen G. Breyer.

U.S. Supreme Court Justice Stephen G. Breyer said Tuesday proponents of expanding or changing the structure of the U.S. Supreme Court should “think long and hard before embodying those changes in law.”

In a speech, Breyer said structural changes could make the high court appear more political and erode trust in it as an institution, the Washington Post reports.

“If the public sees judges as ‘politicians in robes,’ 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 the other branches,” he said in prepared remarks.

Breyer delivered the annual lecture—named for the late Justice Antonin Scalia—at Harvard Law School in a remote appearance.

Other publications with coverage of his speech include the Associated Press, CNN, the Harvard Crimson and Bloomberg Law. Some of the coverage is based on Breyer’s prepared remarks, while some appears to be based on remarks as delivered.

Breyer said judges’ views don’t depend on their political party, despite public views to the contrary, according to CNN.

“The justices tend to believe that differences among judges mostly reflect not politics but jurisprudential differences,” he said.

“Judicial philosophy is not a code word for ‘politics,’” he said.

Breyer said nearly all judges use the same interpretive tools, according to the Harvard Crimson.

“They consider and they read the statute’s text, its history, look at the relevant legal traditions, precedents, purposes, values that underlie the words, and the relevant consequences,” he said.

But judges give different weight to interpretive tools, he said. Some prioritize text and precedent, for example, while others put more weight on “purpose and consequences.”

Despite the Supreme Court’s conservative majority, it has not always voted along political lines, he said. He said the court did not get involved in the 2020 election, upheld abortion rights precedents and rejected efforts by former President Donald Trump to end legal protections for immigrants brought to the United States illegally as children.

Breyer, 82, is the court’s oldest justice, and some have called for him to retire to allow President Joe Biden to appoint a successor.

“While he has said nothing publicly about his plans,” the Associated Press reports, “the speech could be read as a kind of farewell address, filled with calls for the public to view the justices as more than ‘junior league politicians.’”

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