Stephen Breyer Makes the Liberal Case Against Court Packing

[Muda69]

https://reason.com/2022/02/22/stephen-breyer-makes-the-liberal-case-against-court-packing-2/

Quote

In 2008, the U.S. Supreme Court told President George W. Bush that fighting a global war on terrorism did not entitle him to evade constitutional limits on his authority. That decision, Boumediene v. Bush, would go down in the books as one of the most significant modern rulings against wartime government power. "We'll abide by the Court's decision," Bush said. "That doesn't mean I have to agree with it."

What if Bush did not abide by the Court's decision? What if he said the Court was dead wrong and his administration would not be bound by its erroneous judgment? What if subsequent presidents followed Bush's lead and ignored the judicial branch whenever their own favored policies happened to lose in federal court?

Such counterfactual scenarios are the driving force behind Justice Stephen Breyer's timely and important new book, The Authority of the Court and the Peril of Politics (Harvard). The 83-year-old Supreme Court justice is well aware that many modern liberals want President Joe Biden to pack the Court with new members for the express purpose of creating a new liberal supermajority. Breyer thinks those court packers are being both dimwitted and shortsighted. "Think long and hard," Breyer warns them, "before embodying those changes in law."

Court packing is a naked power grab and an attack on the independence of the judiciary. It is a tit-for-tat race to the bottom. One party expands the size of the bench for nakedly partisan purposes, so the other party does the same (or worse) as soon as it gets the chance. Breyer understands this. He also understands something else: If the authority of the Supreme Court is trashed and squandered by court packing, liberalism itself will suffer in the long run.

Let history be our guide. President Andrew Jackson flatly ignored the Supreme Court's 1832 decision in Worcester v. Georgia, which affirmed Cherokee control over Cherokee territory. Jackson defied the ruling by sending federal troops to forcibly remove the Cherokee people from their territory via the infamous Trail of Tears. The rule of law suffers when the political branches ignore the judiciary's judgment. People suffer too.

Breyer worries that today's liberal court packers could severely weaken judicial authority and pave the way for the next Andrew Jackson. "Whether particular decisions are right or wrong," Breyer writes, "is not the issue here." The issue "is the general tendency of the public to respect and follow judicial decisions, a habit developed over the course of American history." One of court packing's biggest dangers is that it will undermine that general tendency.

Breyer asks us to imagine what American history would look like without basic political and public support for the Court's decisions: What "would have happened to all those Americans who espoused unpopular political beliefs, to those who practiced or advocated minority religions, to those who argued for an end to segregation in the South? What would have happened to criminal defendants unable to afford a lawyer, to those whose houses government officials wished to search without probable cause?"

Or take your pick of hot-button modern issues. If the court packers wreck the Court, as Breyer fears they will, what will stop a socially conservative state legislature from prohibiting gay marriage, despite the Supreme Court's clear 2015 ruling against such bans in Obergefell v. Hodges?

Breyer's message is clear and convincing: Liberal court packers should be careful what they wish for.

Mr. Breyer is correct;  court packing is a tit-for-tat race to the bottom.

 

[DanteEstonia]

Or, maybe the way the Federal government selects judges doesn't work?

[Muda69]

9 hours ago, DanteEstonia said:

Or, maybe the way the Federal government selects judges doesn't work?

So how should judges for the SCOUTS be selected, Dante?

 

[Bobref]

2 minutes ago, Muda69 said:

So how should judges for the SCOUTS be selected, Dante?

 

Is that Boy Scouts or Girl Scouts?

[DE]

18 minutes ago, Bobref said:

Is that Boy Scouts or Girl Scouts?

How dare you assume their gender?

[DanteEstonia]

23 minutes ago, Muda69 said:

So how should judges for the SCOUTS be selected, Dante?

 

Something like this-

https://ltgov.alaska.gov/information/alaskas-constitution/

-in article IV, section 8. 

[Muda69]

4 hours ago, DanteEstonia said:

Something like this-

https://ltgov.alaska.gov/information/alaskas-constitution/

-in article IV, section 8. 

So they are still appointed.  Big deal.

 

4 hours ago, DE said:

How dare you assume their gender?

How true, considering girls can now be a member of Scouts BSA.  Yet for some reason GSUSA is not allowing boys to become members.

 

[Bobref]

2 hours ago, Muda69 said:

So they are still appointed.  Big deal.

Are you an advocate of some other method of judicial selection, e.g., popular election?

[Muda69]

4 hours ago, Bobref said:

Are you an advocate of some other method of judicial selection, e.g., popular election?

No, but I thought Dante was with his "Or, maybe the way the Federal government selects judges doesn't work? "  comment.

 

[DanteEstonia]

@Bobref, @Muda69 doesn't read, and his old Gov't teacher didn't prep him for this. 

[Muda69]

On 2/26/2022 at 10:31 AM, DanteEstonia said:

@Bobref, @Muda69 doesn't read, and his old Gov't teacher didn't prep him for this. 

I did read what you linked to.  Wrong again Dante.

And once again you take pot shots at a dead man you never knew.  Tells a lot about your character.

 

[DanteEstonia]

30 minutes ago, Muda69 said:

I did read what you linked to.  Wrong again Dante.

Then tell me-

what makes Alaska's method different from the Federal method?

Edited February 27, 2022 by DanteEstonia
clarity and punctuation

[Bobref]

40 minutes ago, DanteEstonia said:

Then tell me-

what makes Alaska's method different from the Federal method?

Alaska’s method is similar to the way state court judges for the appellate courts are selected in Indiana (and trial judges in Lake County). A panel composed of attorneys and non-attorneys submits a small number of nominees from which the governor makes the appointment. In the US federal system, all judicial nominations are made by the President, and then confirmed by the Senate.

[DanteEstonia]

34 minutes ago, Bobref said:

Alaska’s method is similar to the way state court judges for the appellate courts are selected in Indiana (and trial judges in Lake County). A panel composed of attorneys and non-attorneys submits a small number of nominees from which the governor makes the appointment. In the US federal system, all judicial nominations are made by the President, and then confirmed by the Senate.

The major difference is that in Alaska the legislature is involved in confirming people to the commission, where in Indiana the General Assembly is not involved.

[Bobref]

12 minutes ago, DanteEstonia said:

The major difference is that in Alaska the legislature is involved in confirming people to the commission, where in Indiana the General Assembly is not involved.

I noticed that Alaska had a mandatory retirement age of 70. Interesting.

[Impartial_Observer]

5 hours ago, DanteEstonia said:

The major difference is that in Alaska the legislature is involved in confirming people to the commission, where in Indiana the General Assembly is not involved.

IGA, more specifically Republican leadership couldn’t find their ass with a flashlight. 

[Bobref]

2 hours ago, Impartial_Observer said:

IGA, more specifically Republican leadership couldn’t find their ass with a flashlight. 

When referring to the IGA, isn’t the term “Republican leadership” oxymoronic?

[Muda69]

18 hours ago, Bobref said:

I noticed that Alaska had a mandatory retirement age of 70. Interesting.

Which may have had some merit back when Alaska first became a state.  Now it is just ageist.

 

19 hours ago, DanteEstonia said:

Then tell me-

what makes Alaska's method different from the Federal method?

What Bobref said.  No use in me restating it.

 

[DanteEstonia]

18 hours ago, Bobref said:

I noticed that Alaska had a mandatory retirement age of 70. Interesting.

They had a little bit of foresight. 

[Muda69]

Just now, DanteEstonia said:

They had a little bit of foresight. 

[Bobref]

1 hour ago, DanteEstonia said:

They had a little bit of foresight. 

Yet, Justice Douglas authored his landmark Brandenburg opinion at age 71. There are many similar examples.

[Bobref]

3 hours ago, Bobref said:

Yet, Justice Douglas authored his landmark Brandenburg opinion at age 71. There are many similar examples.

Chief Justice Warren wrote the majority opinion in Miranda when he was 75, and Loving v. Virginia the next year. Hugo Black was 77 when he wrote one of the greatest constitutional law opinions in the Court’s history in Griswold v. Connecticut.

[DE]

1 hour ago, Bobref said:

Chief Justice Warren wrote the majority opinion in Miranda when he was 75, and Loving v. Virginia the next year. Hugo Black was 77 when he wrote one of the greatest constitutional law opinions in the Court’s history in Griswold v. Connecticut.

Anything pertaining to "Griswold", is a beaut.  IYKYK 🙂

[Bobref]

29 minutes ago, DE said:

Anything pertaining to "Griswold", is a beaut.  IYKYK 🙂

Griswold was the precursor to Roe v. Wade and the same-sex marriage cases. By any measure, one of the 3 or 4 most significant individual liberties cases in the 20th Century.