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Elizabeth Warren Endorses Plan To Expand the Supreme Court

Senator says court packing is necessary to balance conservative justices

Sen. Elizabeth Warren (D., Mass.) stands in front of the Supreme Court in 2016 / Getty Images
• December 16, 2021 1:30 pm

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Sen. Elizabeth Warren (D., Mass.) is backing legislation to expand the Supreme Court, accusing Republicans of hijacking the tribunal to subvert democracy.

Warren announced Tuesday that she will add her name to a court-packing bill that Democrats introduced in April. That legislation would add four seats to the High Court, bringing the total number of justices from 9 to 13.

The endorsement makes Warren the new frontman for court-packing, which has attracted support in Congress from a handful of low-profile lawmakers. Her support is a needed jolt to the expansion campaign, which gives every sign of sputtering out for the time being. President Joe Biden's Supreme Court commission refused to endorse Supreme Court expansion, and top Democratic lawmakers in both chambers are refusing to entertain the court-expansion bill.

Democrats offer shifting rationales for the legislation. House Judiciary Committee chairman Jerry Nadler (D., N.Y.), who introduced the bill in July, described it as a benign management necessity. Each justice handles administrative matters for 1 or 2 of the 13 federal appeals courts. Nadler said four seats ought to be added to the Court so that there is one justice per appeals court, which would reduce the strain of those administrative responsibilities.

There is no evidence that the justices are struggling to keep pace with their work—the Court is hearing its lowest number of merits cases per term since the Civil War—and the various circuit courts do not produce Court-caliber cases at an equal rate.

Warren was more forthright about her motives in a short video released Tuesday morning. She connected the Supreme Court's conservative majority with a broader Republican scheme to cleave to power by using "broken rules" such as the filibuster and the Electoral College.

"Republicans steal power to ram through an extremist, unpopular agenda. Basic protections like Roe v. Wade, supported by 70 percent of Americans, are hanging by a thread," she said. "And that's just the tip of the iceberg."

Warren ticked off a litany of grievances with the Supreme Court, citing decisions that favor corporate political spending and a 2018 ruling that forbade public-sector unions from collecting mandatory dues.

Studies show that left-wing groups and Democratic campaigns significantly outpace Republicans on so-called dark-money spending. And in the aftermath of the 2018 decision, the High Court has rebuffed a steady clip of appeals from right-to-work groups that hope to recoup "coerced" dues from the unions.

Warren also said that a case the justices will hear in 2022 could "eviscerate the federal government's ability to fight climate change." But it's not clear that the Court's decision will sweep as wide as Warren fears, experts say, and other legislative alternatives remain viable for addressing climate change.

Speaker Nancy Pelosi (D., Calif.) said in August that she would not put the court-packing bill up for a vote in the House. Senate Judiciary Committee chairman Dick Durbin (D., Ill.) in the spring expressed wariness, saying he wasn't ready to back court-expansion or bring the legislation before the Judiciary Committee.

Senators Ed Markey (D., Mass.)  and Tina Smith (D., Minn.) are the only other Senate sponsors.