In 2008, the U.S. Supreme Court docket advised President George W. Bush that preventing a worldwide warfare on terrorism didn’t entitle him to evade constitutional limits on his authority. That call, Boumediene v. Bush, would go down within the books as one of the crucial vital fashionable rulings towards wartime authorities energy. “We’ll abide by the Court docket’s determination,” Bush mentioned. “That does not imply I’ve to agree with it.”
What if Bush didn’t abide by the Court docket’s determination? What if he mentioned the Court docket was useless flawed and his administration wouldn’t be sure by its inaccurate judgment? What if subsequent presidents adopted Bush’s lead and ignored the judicial department each time their very own favored insurance policies occurred to lose in federal court docket?
Such counterfactual situations are the driving power behind Justice Stephen Breyer’s well timed and essential new e-book, The Authority of the Court docket and the Peril of Politics (Harvard). The 83-year-old Supreme Court docket justice is effectively conscious that many fashionable liberals need President Joe Biden to pack the Court docket with new members for the categorical function of making a brand new liberal supermajority. Breyer thinks these court docket packers are being each dimwitted and shortsighted. “Assume lengthy and arduous,” Breyer warns them, “earlier than embodying these adjustments in regulation.”
Court docket packing is a unadorned energy seize and an assault on the independence of the judiciary. It’s a tit-for-tat race to the underside. One social gathering expands the dimensions of the bench for nakedly partisan functions, so the opposite social gathering does the identical (or worse) as quickly because it will get the prospect. Breyer understands this. He additionally understands one thing else: If the authority of the Supreme Court docket is trashed and squandered by court docket packing, liberalism itself will endure in the long term.
Let historical past be our information. President Andrew Jackson flatly ignored the Supreme Court docket’s 1832 determination in Worcester v. Georgia, which affirmed Cherokee management over Cherokee territory. Jackson defied the ruling by sending federal troops to forcibly take away the Cherokee folks from their territory by way of the notorious Path of Tears. The rule of regulation suffers when the political branches ignore the judiciary’s judgment. Individuals endure too.
Breyer worries that in the present day’s liberal court docket packers might severely weaken judicial authority and pave the best way for the following Andrew Jackson. “Whether or not explicit selections are proper or flawed,” Breyer writes, “will not be the difficulty right here.” The problem “is the overall tendency of the general public to respect and observe judicial selections, a behavior developed over the course of American historical past.” Considered one of court docket packing’s greatest risks is that it’s going to undermine that basic tendency.
Breyer asks us to think about what American historical past would appear like with out primary political and public help for the Court docket’s selections: What “would have occurred to all these People who espoused unpopular political opinions, to those that practiced or advocated minority religions, to those that argued for an finish to segregation within the South? What would have occurred to prison defendants unable to afford a lawyer, to these whose homes authorities officers wished to go looking with out possible trigger?”
Or take your decide of hot-button fashionable points. If the court docket packers wreck the Court docket, as Breyer fears they’ll, what’s going to cease a socially conservative state legislature from prohibiting homosexual marriage, regardless of the Supreme Court docket’s clear 2015 ruling towards such bans in Obergefell v. Hodges?
Breyer’s message is obvious and convincing: Liberal court docket packers must be cautious what they want for.