Don’t pack the Supreme Court

Nine is enough.

‘If the public sees judges as politicians in robes, its confidence in the courts and in the rule of law can only diminish, diminishing the court’s power, including its power to act as a check on other branches.’

– Justice Stephen Breyer

President Biden’s 180-day study to consider adding seats to the U.S. Supreme Court should skip ahead to that conclusion. Term limits are also on the agenda. More on that next.

It’s pure politics to talk about packing the court. Biden is just playing to the progressive wing of the Democratic party still bitter over former President Donald Trump’s rare opportunity to place three justices (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) on the high court.

The court has seated nine justices since 1869. That formula has passed the test of time.

The bench is now dominated by conservatives 6-3 with abortion rights, religious liberty and especially voting restrictions all red-hot issues. But as Chief Justice John Roberts and even Barrett have shown, the justices are independent thinkers.

Article III of the Constitution establishing the judicial branch is designed to keep meddling to a bare minimum. Growing the seats during one administration could lead to the next occupant of the Oval Office escalating. Biden needs to have the courage to anticipate this and keep the court intact.

The Supreme Court must be above the fray at all costs.

“Independence means you decide according to the law and the facts,” Justice Stephen Breyer once said.

This past Tuesday, Breyer warned against the urge to tamper. In his Harvard Law School lecture he said, “Those whose initial instincts may favor important structural changes, such as forms of ‘court-packing,’ (should) think long and hard before embodying those changes in law.”

Now some liberals want the 82-year-old Breyer to step down. How dare he exercise his First Amendment rights?

That’s exactly why the court should remain independent and with nine seats. Breyer, to the dismay of liberals, said toying with the make-up of the court could damage trust. The court’s “power to act justly, at least in my view, does play a major role in obtaining the public’s respect and consequent obedience,” he said in his lecture.

His warning should be heeded. We’re living in trying times when the rule of law shouldn’t be watered down by politics.

Biden announced on “60 Minutes” during the campaign he’d look at growing the court.

“It’s not about court packing,” Biden said. “There’s a number of other things that our constitutional scholars have debated, and I’ve looked to see what recommendations that commission might make. … There’s a number of alternatives that go well beyond packing.”

We assume he’s talking about term limits. If a case can be made, we’re ready to listen. But adding seats to the court is a nonstarter.

It’s ironic a liberal jurist is urging a liberal president to tone down the rhetoric. Now the progressive wing wants him out. They should watch his lecture easily found on YouTube.

Breyer, we argue, is right. “If the public sees judges as politicians in robes, its confidence in the courts and in the rule of law can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” he said in the April 6 address.

“My experience of more than 30 years … as a judge has shown me that once men and women take the judicial oath they take that oath to heart,” he added. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”