Elizabeth Warren: Congress Must Expand the Supreme Court

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Elizabeth Warren: Congress Must Expand the Supreme Court

President Joe Biden has never been a fan of serious Supreme Court reform—whether expanding its numbers, establishing term limits, or both. And he punted on the question by creating a 34-member commission to study the issue. Last week, Biden’s commission wrapped up by making no recommendations, citing “profound disagreement among commissioners,” and merely passed along a 288-page report dispassionately examining the pros and cons of various court-reform proposals.

Now, Senator Elizabeth Warren is calling on Congress to use its constitutional authority to add four members to the court. “I don’t come to this conclusion lightly or because I disagree with a particular decision; I come to this conclusion because I believe the current court threatens the democratic foundations of our nation,” she wrote in a Boston Globe opinion piece Wednesday afternoon.

I interviewed Warren—scheduled to talk about her court reform opinion piece—Thursday evening. And then reports surfaced about a bewildering trade-off between the Build Back Better package and ensuring voting rights (with no evidence either will ever happen), so we talked about that too.

The Biden commission on reform of the Supreme Court had the bad luck—or bad judgment—to release its report just a few days after the court appeared ready to uphold Mississippi’s 15-week abortion ban, which would change the benchmark for legal abortion from fetal “viability,” or roughly 22–24 weeks, which was established by the 1973 Roe v. Wade decision. At least four conservative justices seemed ready to overturn Roe entirely; Chief Justice John Roberts seemed to hold out 15 weeks as a reasonable compromise; none of the other justices seemed to agree with him. It’s almost certain that Roe will be seriously weakened, again, if not overturned.

But Warren says that while she was appalled by the Mississippi hearing, her proposal isn’t driven by any one decision or potential ruling, but rather by the court’s major attacks on voting rights, gun reform, labor rights, environmental regulation, and more. “This court’s lawlessness is a powerful threat to our democracy and our country,” she wrote.

Recently, two commission members, legal scholars Kermit Roosevelt and Caroline Fredrickson, also came out for adding more justices. “Court expansion may be the only thing that will save our democracy for the next generation,” Roosevelt wrote in Time magazine. Court reform supporter Brian Fallon, the executive director of Demand Justice, dismissed the commission as an empty exercise in The New York Times last week.

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