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.
“The best thing about this commission is that it’s finally over and the Biden administration will be forced to now confront the question of what to do about this partisan Supreme Court,” he said.
The only good news lately is the decline in the court’s approval with the public. In the year after Justice Ruth Bader Ginsberg’s death in September 2020, public approval of the court dropped from 66 percent to 49 percent, while disapproval rose from 33 to 50 percent.
I talked to Warren Thursday just after her opinion piece was published. I asked her about her court proposal, but also got in a question about the future of the Build Back Better bill as well as voting rights legislation. This interview has been lightly edited for clarity and length.
Your piece comes out roughly a week after the Biden commission report last week, which made no recommendations because it was hopelessly divided. Is it a reaction to that deadlock?
It’s a cumulative impact of the commission recommending nothing, the Roe hearing, the decision not to hold back the Texas vigilantes—and all the court has been doing to lean into right-wing extremism and undercut the long-standing rule of law. It’s not any one thing, but it reaches a point where it’s too much, and that’s when it’s time to call for change.
You make a convincing case that it’s Republicans who are “packing” the court: first, when Mitch McConnell blocked Obama Supreme Court nominee Merrick Garland from even getting a hearing, and then when he rammed through Amy Coney Barrett’s confirmation a month before the 2000 election. Why do you think so many mainstream Democrats remain wary of proposals to expand the court?
I’ll just be blunt: You’re asking the wrong person. I don’t see it that way. I don’t understand the reluctance of my fellow senators to start ringing every alarm bell they can, and swinging into action to protect our democracy. Look, I’m talking to you right now when Republican legislatures across the country are trying to out-crazy each other, on how many ways they can cut back on American citizens right to vote and to get that vote counted. And yet we don’t have every Democrat on board in the Senate to drive through basic conservative voter protection. And obviously, I’m using conservative…
In the traditional way: to conserve what we have.
Obviously, Congress can change the size of the court—as you note, they’ve done it seven times—but at a time when Joe Manchin apparently won’t approve a filibuster carveout even for a voting rights bill he proposed, is there any chance Congress will do it?
Congress just voted through an exception to the filibuster [to let Democrats raise the debt ceiling] this morning. So if they can do it once, they can do it twice [to create a filibuster carve-out for voting rights]. If they do it twice, they can do it three times [to increase the number of Supreme Court justices]. But we also have to get these ideas out there. The American people have to see we have not simply rolled over and given up. And the Republicans have to see that! When Republicans want to say: We don’t want court-packing…they should not be able to.
Mitch McConnell should not be allowed to steal one seat, and then force through another, so that he created a conservative supermajority on the Supreme Court. That just emboldens people like McConnell to do even worse. To do even more damage.
Inaction will not restore the court to its badly needed credibility. It will take change. That’s why we need to appoint more justices. It’s been done seven times before, the Constitution clearly permits it. The American people see that the Supreme Court is broken; Democrats make a mistake if they ignore that.
Progressives have been talking about this for years, but it still seems true. Republicans go to the polls heavily motivated by the courts and Democrats pay less attention. I’d argue Trump wouldn’t be president if he hadn’t revealed his list of Federalist Society–approved conservative SCOTUS picks. How do we change that?
After this court announces its decision in Roe, I think Democrats will do the same. I think the whole world is gonna change, Joan. I think that given what I saw in just the oral arguments, and what the court is signaling, combined with a Texas case that empowers vigilantes, I think across this country Democrats have awakened to how bad it could be. Roe is not the first terrible decision. This is not a court that has followed rule of law. What they’ve said about overturning long-term abortion rights is not inconsistent with the approach they’ve been using for a long time: campaign finance, union organizing, equal protection, environmental regulation, voting rights. This extremist Supreme Court is willing to overrule long-standing precedent to reach politically predetermined outcomes.
I can’t let you go without asking about what’s going on with Build Back Better, and voting rights legislation. The reports are conflicting, but the preponderance suggests Senate majority leader Chuck Schumer will push BBB into 2022 because of opposition from Senator Joe Manchin. But, supposedly, the Senate will work instead on passing the voting rights legislation—brokered by Senator Joe Manchin. What can you tell us about that?
Voting rights and BBB should have been voted through months ago. But we are where we are.
Voting rights is the single most important thing we can do in this Congress. We must protect American citizens’ right to vote, and get their vote counted, or else we lose our democracy. So whatever we can do to protect voting rights done, count me in. I’ll do anything to get voting rights across the finish line.
But we should also do BBB! We can’t wait any longer to get started on climate change, on building out child care and reducing prescription drug prices. But it takes 50 Democrats to get us there. We can’t count on Republican votes.
But do you have any optimism at all—or perhaps a lot of optimism, I hope!—that Joe Manchin will be on the side of the voting rights supporters who know they have to create a carveout of the filibuster?
I am optimistic we will move on voting rights for two reasons. First, all Democrats are on board for the substance of a good, strong voting rights bill. And second, all Democrats are witnessing firsthand what the Republican state legislatures are doing across this nation. That puts us in a position where we know how urgently we need to act.
And we’ve got the tool in front of us too.
Written by Senator Manchin!
But it’s a good bill! And that’s part of what gives me hope. It’s a strong bill. That tells me all 50 of us want to protect the vote in America.