This month, a majority of justices on the United States Supreme 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.
This is not the first time this extremist court has threatened, or outright dismantled, fundamental rights in this country. For years, the Supreme Court’s conservative majority — recently supercharged to 6-3 — has issued decision after decision that veers away 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. 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.
For years, I have argued for reforms to the ethical practices of the Supreme Court. Justices should not be allowed to receive big checks and all-expenses-paid trips from extremist right-wing legal groups or go on expensive hunting trips with litigants who appear before the court.
But the problems with today’s court run deeper than ethical abuses.
Over the past few years, Senate minority leader Mitch McConnell hijacked America’s 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. 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.
Article III, Section 1 of the Constitution gives Congress the authority to change the size of the Supreme Court. Congress has used that authority seven times before.
This Republican court-packing has undermined the legitimacy of every action the current court takes. But rather than trying to restore Americans’ confidence in an independent judiciary, this court leans into extremism and partisanship. This radical court has reversed century-old campaign-finance restrictions, opening the floodgates for corporations to spend unlimited sums of money to buy our elections. It has reversed well-settled law that once required employers to permit union organizers to meet with workers. It has trampled on the Constitution’s guarantee of equal protection by upholding a racist Muslim ban. It has twisted the law to deny Americans their right to a day in court, despite the clear intent of Congress. And it has gutted one of the most important civil rights laws of our time, the Voting Rights Act, not once but twice.
Without reform, the court’s 6-3 conservative supermajority will continue to threaten basic liberties for decades to come. In this term alone, the Supreme Court is considering whether to nullify the right to an abortion in America, whether to bar states and cities from regulating guns on our streets, and whether to eviscerate the federal government’s abilities to fight climate change. The fact that the Supreme Court is even considering questions to upend decades of settled law jeopardizes the fundamental principle of the rule of law. But conservative justices’ recent decisions and their apparent appetite to overturn decades of precedent underscore one important truth: This court’s lawlessness is a powerful threat to our democracy and our country.
I believe in an independent judiciary. 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. 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.
Article III, Section 1 of the Constitution gives Congress the authority to change the size of the Supreme Court. Congress has used that authority seven times before. To restore balance and integrity to a broken institution, Congress must expand the Supreme Court by four or more seats.
Some oppose the idea of court expansion. They have argued that expansion is “court-packing,” that it would start a never-ending cycle of adding justices to the bench, and that it would undermine the court’s integrity.
They are wrong. And their concerns do not reflect the gravity of the Republican hijacking of the Supreme Court.
First, it was McConnell, along with Donald Trump, who used two stolen seats to pack the court. 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.
Second, 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.
Finally, between its ethical failings, its stolen seats, and its radical right-wing opinions on abortion, voting, dark money, unions, corporate power, and more, this Supreme Court has hit record lows in the eyes of the public. 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.
Engraved on the entrance of the Supreme Court is a simple phrase: “equal justice under law.” Americans deserve a court committed to that fundamental idea. One that values the settled constitutional rights of every American. One that protects democracy instead of undermining it. One that gives working parents and millionaire executives the same fair shake. 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.
Elizabeth Warren is a US senator from Massachusetts.