Justice Breyer Just Showed Us Why the Supreme Court Is So Broken
Justice Breyer's obliviousness shows us exactly why court-packing is necessary.
Frankly, Democrats have not had much luck in recent decades when it comes to the Supreme Court. Justice Sandra Day O’Connor retired at just 76 years-old, allowing President Bush to appoint Samuel Alito. The progressive icon Thurgood Marshall stepped down due to health issues with just a year and change left before President Clinton took office, allowing Clarence Thomas to take the bench. And, of course, Ruth Bader Ginsburg tragically passed away during the final months of President Trump’s term, leading to the appointment of Amy Coney Barrett just days before Joe Biden won the 2020 election.
So it’s no surprise that liberals are itching for Justice Breyer, 82, to step down. His age, as well the Democrats’ razor-thin majority in the Senate, rightfully stick out to many as a disaster waiting to happen. You would think, given all the external pressure and the extremely unfortunate recent events that have led to a solid 6-3 conservative majority on the Supreme Court, that Breyer would be laying low.
Alas.
Critics of the American judiciary have long stated that the courts, particularly the Supreme Court, are vastly out of touch and in desperate need of reform. And so it was that Breyer, while speaking to a group of Harvard Law School students on Tuesday, displayed a complete cluelessness as to the trends that are fueling the calls for reform and, in doing so, offered a glaring illustration of just how broken our judiciary is.
First, in response to a question about court-packing—the increasingly popular proposal put forward by progressives to increase the number of justices on the Supreme Court—Breyer gave the vague and tired response that doing so would “erode trust” in the Court.
It goes without saying that it takes a particularly high level of obliviousness to cite court-packing as the thing that could erode trust in the Supreme Court when, in just the past several years, Republicans have stolen a seat, relentlessly packed the lower courts, and jammed through a far-right Trump-appointee to replace Justice Ginsburg just days before a presidential election. Indeed, the only reason court-packing is on the table is because Republicans have already eroded trust in the Supreme Court. This is, of course, plainly obvious. That one of the nation’s leading minds cannot observe this basic reality is alarming, to say the least.
Next, Breyer stated his disagreement with what to most Americans is simply a statement of fact. In Breyer’s view, the Supreme Court—which constitutes six justices appointed by Republican presidents, including three by President Trump—is not conservative:
The court’s decision in the 2000 presidential election case, Bush v. Gore, is often referred to as an example of its favoritism of conservative causes. But the court did not hear or decide cases that affected the political disagreements arising out of the later 2020 election.
That Breyer’s standard of fairness apparently hinges on whether one is willing to overturn the results of a democratic election is itself serious cause for concern. But consider this: since Breyer was appointed, the Supreme Court has gutted the Voting Rights Act, eviscerated campaign finance regulations, given constitutional protection to military-style assault weapons, and offered special legal protection to individuals who discriminate against gay people. Justice Breyer dissented in all of those key cases.
It is beyond debate that the Supreme Court under Chief Justice Roberts is a relentless force for right-wing interests. It is simply a matter of fact that the Supreme Court is conservative. That one of the remaining three justices appointed by a Democrat cannot see that simply defies belief. But it also says so much more.
Breyer’s staggering tone-deafness is emblematic of a broader reality: the American judiciary, from top to bottom, is broken and out of touch. It skews older, whiter, more male and more affluent that the country at-large. And life-tenure, coupled with the roulette-style nature of judicial appointments, creates a system completely without accountability or any connection to the will of voters.
There is, fortunately, a fix for this: expand the number of seats on the Supreme Court and lower appellate courts to counteract years of successful conservative efforts to pack the courts with right-wing judges. Regrettably, there is simply no other option to reign-in the Supreme Court’s increasingly firm, unhinged grip on American life.
When something is broken, it ought to get fixed. Justice Breyer’s indefensible comments make it clear that the Supreme Court falls into that category.