Elizabeth Warren Becomes Latest Candidate to Potentially Endorse Packing the Supreme Court


Just when you thought the Democrat field couldn’t get pushed further to the left, yet another candidate for president says they would be “open” to packing the Supreme Court.

Massachusetts Sen. Elizabeth Warren, according to the Washington Examiner, was speaking at a gathering hosted by immigration attorney Ron Abramson in Bow, New Hampshire when she was asked about the current makeup of the Supreme Court and, it assumedly being insufficiently liberal for the questioner’s taste, would she be amenable to expanding the number of justices.

“You are right to point out the dangers posed by a Supreme Court,” Warren said.

“The Republicans did steal the Supreme Court seat, and they changed the balance in our court from what it otherwise wouldn’t be. I’m open and I will leave it there.”

By “steal,” of course, what she meant is that a Republican-controlled Senate was unwilling to consider the nomination of Merrick Garland in an election year. This was under what was known as the informal “Biden Rule,” proposed after the Clarence Thomas confirmation in 1991. Based on the name of said rule, you might guess which party first proposed not considering a Supreme Court nominee in the heat of an election cycle.

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How much this rule had to do with Garland’s lack of consideration in the Senate is anyone’s guess; one might also suspect the fact that President Obama had a fractious relationship with Congress had something to do with it. Either way, it certainly doesn’t involve theft, just lousy presidential instincts.

Warren did express reservations about the idea of court-packing, seeming to realize the inherent dangers while still appearing prepared to move forward.

“I’m open. I worry in both directions. I worry in the direction of further politicizing the court,” Warren said.

“I add three then you add three. Then the next one adds three. But I also understand the dangers that we face with a Supreme Court that no longer reflects mainstream legal thought in America.”

Do you think the Supreme Court should be expanded?

I love the euphemism here, “mainstream legal thought in America.” In other words, “liberal” is “mainstream,” anything that isn’t, well, isn’t.

Nevertheless, this is worrying if just because it’s a step up from Warren’s previous position on the matter; back in March, she said that court-packing was “a conversation worth having” and that a rotating system with appellate court justices — something like what Bernie Sanders has proposed — might be doable.

The difference is that when a politician says they want to have “a conversation” about something, what they usually mean is that they’ll talk about it on the campaign trail but never again after that. Saying that you’re “open” to something indicates a greater degree of suggestibility in the matter. Even though she’s not willing to fully commit to the idea — so few are willing to openly say it, after all — it’s a disturbing trend.

Make no mistake, either: This isn’t just about protecting Roe v. Wade or “mainstream legal thought in America.”

David A. Graham of The Atlantic encapsulated it neatly in an article after South Bend, Indiana mayor and presidential candidate Pete Buttigieg announced his court packing scheme when he said that “many of the major items on Democratic wishlists are likely to be dead on arrival in the Roberts Court as currently constituted.

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“From voting rights to campaign-finance reform and health-care overhauls to the Green New Deal, a new Democratic president faces the real prospect of a Court blowing big holes in any policy proposal even if Congress is Democratically controlled. (Just ask Obama about the Affordable Care Act.) Changes to the Court are a possible prerequisite to any other major legislation, so it stands to reason that Democratic presidential hopefuls would pursue them, and it makes sense that Democratic voters would take new interest in the Court.”

But this is the key contradiction: The court is a check on the other two branches of government if they move quickly in a direction that contradicts existing law or the Constitution.

By packing the court to get legislation past scrutiny — all because Democrats believe they are possessed of “mainstream legal thought” — we disregard the entire meaning behind the Supreme Court in the first place. Things didn’t go the Democrats’ way electorally. Instead of dealing with it, they want unlimited do-overs until they get what they want — in this case, flooding the court with justices until they have a majority.

Then, of course, they’ll all be against court-packing again.

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C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014.
C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014. Aside from politics, he enjoys spending time with his wife, literature (especially British comic novels and modern Japanese lit), indie rock, coffee, Formula One and football (of both American and world varieties).
Morristown, New Jersey
Catholic University of America
Languages Spoken
English, Spanish
Topics of Expertise
American Politics, World Politics, Culture