Kevin Daley on April 25, 2019
Justice Stephen Breyer shared mixed reactions to recent reform proposals for the Supreme Court, saying term limits might be desirable while an expanded Court would not be.
The remarks, delivered Monday in Washington, D.C., come as a growing number of Democratic presidential candidates have entertained proposals to remake the nation’s highest judicial tribunal.
“I think it would be fine to have long terms, say 18 years, or something like that,” Breyer, a Clinton appointee, said. “It would make life easier. I wouldn’t have to worry about when I’m going to have to retire or not, and that would be easier for me.”
Breyer noted that he has endorsed such reforms in the past.
The justice cautioned that any such term of service must be long, in order to protect the Court’s integrity. He expressed a particular fear that justices serving shorter terms could make decisions with a view toward their post-judicial career. The prospect of monetizing judicial experience is sometimes cited by opponents of term limits.
Others say term limits diminish incentives for the justices to cooperate, which is especially destructive for a Court that places collegiality near the apex of virtue. Though divisive 5-4 decisions in political or social disputes understandably shape public perception of the Court, about half of its decisions are unanimous, while another third are resolved with a high degree of consensus.
Breyer was less receptive, however, to efforts to change the Court’s composition by increasing seats. If anything, he said decreasing the Court’s size might be appropriate, noting that some state Supreme Courts function well with seven justices.
“I think nine is fine,” Breyer said, while cautioning that he was not commenting on any particular candidate’s plan to change the Court’s composition.
At least five members of the Democratic presidential field have endorsed “court reform” to various degrees. South Bend Mayor Pete Buttigieg and former U.S. Rep. Robert “Beto” O’Rourke suggested a plan to expand the Court by six seats, from nine to 15. To mitigate ideological conflict, they propose that five justices be appointed by Republicans, another five by Democrats, while the remaining five would be selected by the unanimous consent of the first 10.
Democrats frame the problem in terms of institutional credibility; they say Republican presidents governing without a clear popular mandate have installed a conservative majority that will produce decisions contrary to contemporary sensibilities. As such, they claim public confidence in the Supreme Court as a neutral arbiter of law will diminish.
The high court heard its final arguments of the term Wednesday. The justices will issue opinions through the end of June, when they will adjourn for the summer.