A sitting justice reflects upon the authority of the Supreme Court—how that authority was gained and how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it.
A growing chorus of officials and commentators argues that the Supreme Court has become too political. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than “politicians in robes”—their ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions. As a result of this perceived crisis, and for the first time since the New Deal era, there is serious talk of court packing in the name of ideological balance.
Justice Stephen Breyer sounds a cautionary note. Mindful of the Court’s history, he suggests that the judiciary’s hard-won authority would be marred by reforms premised on the assumption of ideological bias. Having, as Hamilton observed, “no influence over either the sword or the purse,” the Court earned its authority by dispensing impartial justice and thereby accumulating public trust. If public trust is now in decline, the solution is to promote better understanding of how the judiciary actually works: overwhelmingly, judges adhere to their oath to avoid considerations of politics and popularity. The peril facing the Supreme Court comes less from partisan judges than from citizens who, encouraged by politicians, equate impartial justice with agreeable judicial outcomes.
Breyer warns that public trust would be eroded by political intervention, dashing the authority of the Court. Without the public’s trust, the Court would no longer be able to act as a check on the other branches of government and a guarantor of the rule of law, threatening the foundations of our constitutional system.