Law & the Courts

Elizabeth Warren Endorses Court-Packing: ‘Current Court Threatens the Democratic Foundations of our Nation’

Sen. Elizabeth Warren (D., Mass.) listens during the Senate Health, Education, Labor, and Pensions Committee nomination hearing for Marty Walsh to be the next labor secretary, on Capitol Hill in Washington, D.C., February 4, 2021. (Mandel Ngan/Pool via Reuters)

Senator Elizabeth Warren (D., Mass.) came out in support of court-packing on Wednesday, writing in an essay for the Boston Globe that she would endorse adding four or more seats to the nine-seat Supreme Court.

In the essay, Warren noted that a majority of justices on the Court “signaled their willingness to gut one of the court’s most important decisions over the past century, threatening to eliminate Roe v. Wade and a person’s right to choose.”

She argued it is not the first time this “extremist court has threatened, or outright dismantled, fundamental rights in this country,” claiming that the Court’s conservative majority has issued a series of decisions that veer from “both basic principles of law and widely held public opinion.”

“With each move, the court shows why it’s important to restore America’s faith in an independent judiciary committed to the rule of law,” Warren wrote. “To do that, I believe it’s time for Congress to yet again use its constitutional authority to expand the number of justices on the Supreme 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.”

Warren goes on to accuse Senate Minority Leader Mitch McConnell of having “hijacked” the Supreme Court.

“First, in 2016, he engineered the theft of one seat, breaking from longstanding precedent by denying even a hearing to President Obama’s highly qualified nominee,” she wrote. “Four years later, he reached new heights of hypocrisy when he reversed direction — breaking his own “rule” barring votes on justices in an election year — to ram through the confirmation of Justice Amy Coney Barrett only days before President Biden’s election. This Republican court-packing has undermined the legitimacy of every action the current court takes.”

“This extremist court has shown that it is not interested in advancing the equal administration of justice. It’s time to rebalance the Supreme Court to create one that is.”

Warren’s diatribe comes one week after a commission formed by President Biden to study potential reforms to the U.S. Supreme Court voted unanimously to approve a final report that takes “no position” on Court-packing.

The panel, which Biden formed in April to study Court expansion and reform, voted to send a nearly 300-page report to the president that offers arguments for and against Court-packing, judicial term limits and other matters related to the high Court, but does not provide any recommendations. 

“Mirroring the broader public debate, there is profound disagreement among commissioners on these issues,” the report says. “We present the arguments in order to fulfill our charge to provide a complete account of the contemporary court reform debate.”

The final report follows the release of draft materials detailing the panel’s discussions in October in which the commission warned that expanding the number of justices on the Court would be seen as a “partisan maneuver.”

Warren noted that “some oppose the idea of court expansion,” and that opponents have argued that expansion is court-packing that would “start a never ending cycle of adding justices to the bench, and that it would undermine the court’s integrity.”

“They are wrong,” she wrote. “And their concerns do not reflect the gravity of the Republican hijacking of the Supreme Court.”

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