Politics

Elizabeth Warren comes out in support of expanding the Supreme Court

Warren plans to cosponsor Ed Markey's bill to add four seats to the Supreme Court. But she's open to "more."

Sen. Elizabeth Warren, D-Mass., speaks to a reporter on Capitol Hill in Washington, Tuesday, Dec. 7, 2021.(AP Photo/Carolyn Kaster) Carolyn Kaster / AP

Make room, Ed Markey.

Sen. Elizabeth Warren is now on board with the fledgling effort to expand the Supreme Court.

In a Boston Globe opinion piece Wednesday, the senior Massachusetts senator called on Congress to “expand the Supreme Court by four or more seats,” in order to “restore balance and integrity to a broken institution.” And she plans on backing Markey’s legislation to make the change.

“I believe in an independent judiciary,” Warren wrote.

“I also believe in a judiciary that upholds the rule of law — not one that ignores it to promote a deeply unpopular and partisan agenda at odds with the Constitution and the settled rights of our citizens,” she continued. “And when a court consistently shows that it no longer is bound by the rule of law, Congress must exercise its constitutional authority to fix that court.”

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The opinion piece marks a shift for the Cambridge Democrat.

During her 2020 presidential campaign, Warren said the topic of Supreme Court expansion was a “conversation that’s worth having.” And she has called for several ethics reforms to the court around conflicts of interest and judicial misconduct for years.

But not until Wednesday did she announce her full-throated support for adding additional seats to the nine-justice body.

“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 wrote.

She cited a “Republican hijacking” of the court, which has led to a 6-3 conservative majority that now appears to be reconsidering the decades-old precedent set by Roe v. Wade prohibiting states from instituting total bans on abortion.

But beyond the ongoing abortion rights case, Warren said the court’s “radical right-wing opinions on abortion, voting, dark money, unions, corporate power, and more” had perpetuated the court’s sinking public approval. She also said those decisions have repeatedly overturned “well-settled” constitutional principles.

“Rebalancing the court is a necessary step to restore its credibility as an independent institution, one that works for the American people and not just for the wealthy and the powerful,” Warren wrote.

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Warren’s office said she will co-sponsor the Judiciary Act of 2021, the bill introduced by Markey this past April to make the Supreme Court a 13-member body, ostensibly giving President Joe Biden the opportunity to appoint four like-minded justices.

Warren joins Sen. Tina Smith, a Minnesota Democrat, as the second Senate cosponsor of Markey’s legislation, which also has 46 supporters in the House.

“The movement to expand the Court is growing and we are going to win,” Markey tweeted Wednesday.

Biden and other Democratic leaders, however, have resisted those calls, which has quickly gone from the fringe to mainstream among liberal members (with narrow majorities in the House and Senate, Democrats mostly remain occupied with trying to pass the more central elements of Biden’s platform).

Last week, a commission of experts appointed by Biden released its final report on Supreme Court reform. While it avoided taking a position on policy proposals, the panel did affirm that Congress has the power to expand the court.

Proponents note that Congress repeatedly changed the size of the Supreme Court during the 1800s. And they say doing so now would simply be a logical progression to reflect the growing size of the country and its circuit courts.

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However, it wasn’t until Republicans appointed three Supreme Court justices under President Donald Trump that those calls gained steam.

The appointments included the quick confirmation of Justice Amy Coney Barrett weeks before the 2020 election, after Senate Republicans refused to give former president Barack Obama’s nominee (and now attorney general) Merrick Garland a hearing in 2016, based on the rationale that it was an election year, holding it open for Trump to appoint Justice Neil Gorsuch.

“The same people who reduced the size of the court for over a year solely for their own partisan gain and then turned around and jammed through another nominee days before losing the presidency cannot complain about a clearly constitutional proposal to fix the mess that they made,” Warren wrote Wednesday.

Now, she says that “adding seats to the Supreme Court may be one of the few ways to deescalate the arms race around the court.”

“If we stand by while the highest court in our land bows to special interests and destroys the long-acknowledged rights of individuals, we reward those who broke the rules in the first place, encouraging bad actors to further corrupt the court without any consequences,” Warren wrote.

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