In remarks prepared for a speech at Harvard Law School, Breyer wrote that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”
He added: “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”
Some Democrats and liberal activists say that adding seats to the court is the only way to blunt the court’s conservative majority.
They contend it is a proper and logical response to what they say was a form of court-packing by Senate Republicans. The GOP-led Senate refused to fill a vacancy that came open during Barack Obama’s presidency, and rushed to confirm Justice Amy Coney Barrett just days before the presidential election where Trump appeared likely to lose.
But Breyer has been cool to the idea in the past — as have other justices. He said his intent in the lecture — named for the late Justice Antonin Scalia — was to “make those whose initial instincts may favor important structural or other similar institutional changes, such as forms of ‘court-packing,’ think long and hard before embodying those changes in law.”
He acknowledged that judges are nominated by political parties because of their judicial philosophies, and that politicians, the media and the public broadly think of them as conservative or liberal.
But, he said, proposed structural changes in the judiciary could only deepen distrust.
“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.
The court is widely acknowledged to have a 6-to-3 conservative majority, but Breyer even took issue with that. He pointed to the justices’ decision to defy Trump’s insistence that it get involved in the results of the recent election.
“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,” Breyer said. “But the court did not hear or decide cases that affected the political disagreements arising out of the 2020 Trump v. Biden election.”
Trump has said the court, which includes three of his nominees, displayed a lack of “guts” and let down conservatives.
Breyer, in addition, noted liberal victories in the court.
“It did uphold the constitutionality of Obamacare, the health care program favored by liberals. It did re-affirm precedents that favored a woman’s right to an abortion. It did find unlawful certain immigration, census, and other orders, rules, or regulations, favored by a conservative president,” he said, according to the prepared remarks.
Breyer acknowledged that “at the same time it made other decisions that can reasonably be understood as favoring ‘conservative’ policies and disfavoring ‘liberal’ policies. These considerations convince me that it is wrong to think of the court as another political institution.”
Breyer, 82, is the court’s oldest justice, and has his own political considerations to make. He was nominated to the court in 1994 by Democratic President Bill Clinton, and is under considerable pressure to retire now, while another Democrat, Joe Biden, is in the White House and Democrats hold a narrow control of the Senate.
Many Democrats and liberal activists are urging him to make an announcement soon; Biden has said when there is an opening, he will nominate the court’s first African American woman.
Justice Ruth Bader Ginsburg resisted similar calls to retire when Obama was president, and her death last September at age 87 gave Trump the chance to nominate Barrett, who just turned 49.
Breyer gave no hint in his speech about whether he is considering stepping down.