Columns, Congress, Constitutional Law, Politics

Destroying the Court to Save it: Warren Calls For Packing the Supreme Court With a Liberal Majority
This week, Sen. Elizabeth Warren (D., Mass.) finally buried her former persona as a law professor. In a transition that began in 2011, Warren has struggled with the demands of politics that often pit her against core legal principles.

Warren’s final measure of devotion to politics came in her Boston Globe op-ed where she called for the Supreme Court to be packed with a liberal majority. She justified her call by denouncing the court for voting wrongly on decisions and, perish the thought, against “widely held public opinion.” Of course, the Framers designed the courts to be able to resist “widely held public opinion” and, yes, even the Congress. Warren’s solution is to change the Court to make it more amenable to the demands of public (and her) opinion. Some of us have been discussing the expansion of the Court for decades. However, there is a difference between court reform and court packing. What Democratic members are demanding is raw court packing to add four members to the Court to give liberals an instant majority — a movement denounced by figures like the late Justice Ruth Bader Ginsburg and Justice Stephen Breyer. Last year, House Judiciary Committee Chair Jerry Nadler, D-N.Y., Sen. Ed Markey, D-Mass, and others stood in front of the Supreme Court to announce a court packing bill to give liberals a one-justice majority.  This follows threats from various Democratic members that conservative justices had better vote with liberal colleagues . . . or else. Sen. Jeanne Shaheen, D-N.H., recently issued a warning to the Supreme Court: reaffirm Roe v. Wade or face a “revolution.”  Sen. Richard Blumenthal previously warned the Supreme Court that, if it continued to issue conservative rulings or “chip away at Roe v Wade,” it would trigger “a seismic movement to reform the Supreme Court. It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”Senate Majority Leader Chuck Schumer also declared in front of the Supreme Court “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.”For her part, Rep. Alexandria Ocasio-Cortez, D-N.Y. questioned the whole institution’s value if it is not going to vote consistently with her views and those of the Democratic party: “How much does the current structure benefit us? And I don’t think it does.”Warren seems to be channeling more AOC than FDR. Roosevelt at least tried to hide his reckless desire to pack the Court by pushing an age-based rule. It was uniquely stupid. The bill would have allowed Roosevelt to add up to six justices for every member who is over 70 years old. Warren, like AOC, wants the Democratic base to know that she is pushing a pure, outcome-changing court packing scheme without even the pretense of a neutral rule.

Despite the fact that the Court has more often voted on non-ideological lines (and regularly issued unanimous decisions), Warren denounced the Court as an “extremist” body that has “threatened, or outright dismantled, fundamental rights in this country.” Those “fundamental” values do not apparently include judicial independence.

What is most striking is Warren’s use of a clearly false premise: that the Republicans packed the Court first: “This Republican court-packing has undermined the legitimacy of every action the current court takes.” She is referring to the Republicans refusing to vote on the nomination of Merrick Garland during the Obama Administration. Many of us criticized the lack of a Senate vote at the time. However, that is not court packing. It did not add seats to the Court. The Senate has the constitutional authority to vote or not to vote on a nominee. It was perfectly constitutional. What Warren is advocating is the addition of seats to the Court, which the Congress can do but most voters oppose as unprincipled and dangerous.

For Warren to call the Garland controversy “court packing” is all that you have to know about her column. She knows that that was not court packing, just as she knows that court packing is fundamentally wrong.  However, the Warren op-ed was her Rubicon where she crossed over from being a law professor to being a politician.

That transition has not been an easy one for Warren. As an academic, Warren was described as a “die-hard conservative” who was a leading advocate for corporations.  All of that had to go when she decided to seek the Democratic nomination for the Senate. Even more has to go if you seek the Democratic nomination for president (an even greater priority now as Democrats and media figures seek alternatives to President Biden).

Academics often evolve in their views of constitutional or statutory issues. However, Warren never made the transition from a corporate defender to an anti-corporate activist in her academic writings. It came largely after her entry into politics without an explanation of the reasons for adopting the new positions. The fact is that Warren had some interesting scholarship in the business law area and it would be equally interesting to understand why she has moved away from those positions.

That however was not enough. In the age of rage, one has to show that you are willing to do what others are not willing to do . . . like tear down the leading judicial institution in our constitutional system. If you are going to run in the Democratic primary, you need to be a “made” politician who has demonstrated that you can dispense with the niceties of the Constitution and do what makes others cringe. After all, how does the Court “benefit us”? Those other candidates may support higher taxation or spending bills but they are weaklings if they balk at packing the Supreme Court.

There is a sense of release in crossing that Rubicon. You are no longer burdened by the need to justify one’s actions in light of constitutional history or values. For example, during the confirmation hearing for Justice Kavanaugh, Sen. Sheldon Whitehouse (D-R.I.) demanded that Kavanaugh promise to respect stare decisis on cases like Roe, but then called for overturning cases like Citizens United v. Federal Election Commission.

It is the same glaring hypocrisy of democratic leaders like Warren denouncing the conservative majority as “partisan” while demanding the packing of the court to guarantee an immediate liberal majority.

The Warren column is perfectly Orwellian in declaring that the Supreme Court now “threatens the foundations of our nation” while using that claim to destroy our highest court. It is the judicial version of the explanation in the Vietnam War that “it became necessary to destroy the town to save it.” Warren would open up the Court to continual manipulation by shifting majorities in Congress — recreating the Court in the image of our dysfunctional Congress.

So, on December 15, 2021, Elizabeth Warren finally transitioned to being a pure politician unburdened and unrestrained. From “Tax the Rich” to “Pack the Court,” Warren is now soundbite ready and principle resistant for 2024.

 

237 thoughts on “Destroying the Court to Save it: Warren Calls For Packing the Supreme Court With a Liberal Majority”

  1. Why is Senator Warren doing nothing about the credit union cartel, the profiteers of tax-exempt banking who pay NO federal taxes on tens of billions annually, that causes working families to shoulder more and more of the tax burden.

    1. Senator Warren is on the Senate Finance Committee that won’t repeal the tax-exempt status of this banking cartel – Watch the video

  3. The NATO charter could be easily amended to state that NATO will come to the defense of would-be members.

  4. Has anyone realized that the Bush/GOP created terrorism laws/authorities used against 9/11 persons-of-interest are now being against primarily Conservatives and Republicans? The vast majority of terrorism investigations and blacklisting have now pointed their guns towards domestic citizens – mostly conservatives and Republicans. The text book definition of “Mission-Creep” and “Slippery Slope”. The GOP created monster is now preying on their own. It’s also dangerous for other groups like “Black Lives Matter” and non-violent environmental groups as well.

    Groups like the “ACLU” on the left and “Institute for Justice” on the right warned about this happening since the early Bush years. Now it’s here and the worst is yet to come. Most state operated “Fusion Centers” (partially funded by the DOJ & DHS) are now investigating and blacklisting us, not many foreigners.

    1. “Has anyone realized that the Bush/GOP created terrorism laws/authorities used against 9/11 persons-of-interest are now being against primarily Conservatives and Republicans? ”

      Yes, many have, and many feared this could occur. But the left and the big-government Republicans forget this type of danger. Many of the same kinds also forget the limits the government is supposed to have. That is why the intelligence agencies under Obama were permitted to spy on Trump, lie before Congress and subvert the rule of law.

      On this blog, those on the left that continuously insult Turley don’t realize he is trying to protect our civil liberties and the rule of law.

      1. Protecting the rule of law? Then why is Turley so silent on January 6th? Why is he so silent about red states doing their best to be the ones and only ones who count the vote, by their standards only, some protecting of civil liberties there huh?

        1. I agree. Turley should be talking about Jan 6 and the rule of law broken by the left. How come the FBI took Epps name and others off their list? What were they doing encouraging people to riot when they have a relationship to the FBI? What about the leftists? Why has the left including politicians lied so much about Jan 6? Why were videos not released? Why were people jailed in horrid conditions without the usual constitutional questions? Why are the few on the right being treated by the Judicial system so much worse than those on the left that did more damage?

          You are right a lot of questions need answering and perhaps all these questions will be raised by Turley.

          SM

          1. Maybe Putin’s RT could answer your questions. Or is that where you got the questions from?

            1. No my questions came from the FBI website photos, the criminal complaints, the pictures taken, the recordings made and things like that.

              For Putin I have to check with Hillary, but she is going to stay away from him for now.

              I’m surprised you didn’t have those questions yourself since links to people like Epp and histories of them are on the net. I think you just want to confirm your suspicions.

  5. When Asian people make food, it is only natural and logical to refer to it as Asian food.

    1. Would that be cultural appropriation? If not, it must be some sort of racism. Maybe, it’s a microaggression. This sounds like the early stages of some sort of hate crime. When will it ever end.

  6. Simply restoring and preserving our “constitutional democratic republic” benefits voters of all parties. Reminder: Political parties don’t lead in expanding rights for women, African-Americans, LGBT-Americans, property owners and gun owners. Political parties FOLLOW plaintiffs in court cases. So if you are concerned about your civil rights or gun rights, thank the Judicial Branch court system.

    Democrats are usually well-meaning but they leave out the fact that “republic” is the noun and that “democratic republic” is describing the form of republic. Simply using “democracy” as the noun (model of government) is the tyranny James Madison warned about. Madison termed it the “tyranny of the majority” when democracy exceeds constitutional limits (ie: January 6 insurrection, Jim Crow laws, Bush’s torture techniques adopted from the Spanish Inquisition, etc). “Pure Democracy” is a recipe for disaster and ironically harms the Democrat’s voter base the most. Democrats should stop using “democracy” as the noun describing our form of government. It’s democracy operating within constitutional legal boundaries with a “republic” [Congress, state legislatures] to represent the people’s interests – as long as it’s constitutional.

    Simply supporting “pure democracy’ unrestrained by the U.S. Constitution is not what the Reverend Martin Luther King, Jr. or Ronald Reagan supported. Women’s rights, African-American rights, LGBT rights, right to marry whomever you choose, etc. was led by court cases NOT either political party.

    In the 21st Century, Conservatives largely ignored and even supported the unconstitutional actions of Bush and friends in Congress. Progressives largely ignored unconstitutional actions of attacking the free press and exploiting the Espionage Act of 1917 to silence journalists and whistleblowers.

    Both sides won using the “constitutional democratic republic” model. Gun rights have actually greatly expanded during the 21st Century with the “Heller” ruling in 2008 and it’s now virtually impossible for your gun rights to be taken away – unless you support the “pure democracy” model. LGBT rights and marriage rights have made huge victories in the 21st Century and now nearly impossible to reverse – unless you support the “pure democracy” model.

    Conservatives have been silent when this American system was under attack during the War on Drugs era and the lawless Bush years – when Bush violated Ronald Reagan’s Torture Treaty which was codified into federal USA law. Progressives have been silent also when this system was under attack with over 90% of Espionage Act investigations and indictments being used against “non-spies”, patriotic journalists and whistleblowers trying to save their country – not hurt it.

    Embracing a “pure democracy” model or “dictator of the month” model harms all Americans of all political parties. Even if you disagree with the American system, it requires a constitutional-amendment to legally change the system.

  8. I will agree with packing the court if in return we can have congressional term limits and congress returning all their campaign contributions once they leave office to lowering the debt.

  9. I think a proposal to add two justices to the Supreme Court would be an appropriate and proportional response by the Democrats to what what the Republicans did with respect to the Garland (did not consider — no no hearing and no votes) and Barrett (ignored Garland precedent of waiting for next President and had quick hearing and votes) nominations.

  10. “McConnell Explains How He’ll Steal Another Supreme Court Pick From Another Democratic President”

    The Republican signals that if his party retakes the Senate, he’ll block Biden’s high court nominees in 2024—and very probably in 2023.

    Mitch McConnell stole a Supreme Court nomination from Barack Obama and gave it to Donald Trump.

    Now, the Senate Republican leader is preparing to steal a Supreme Court nomination from Joe Biden and give it to the Republican he presumes will succeed the 46th president.

    McConnell appeared on right-wing talker Hugh Hewitt’s radio show Monday and was asked how Republicans—if they win control of the Senate in 2022—would respond to any effort by President Biden to fill a Supreme Court vacancy that occurs in the presidential election of 2024.

    McConnell is famously hypocritical when it comes to judicial politics—even if an on-bended-knee media frequently allows the senator to claim otherwise. In 2016, McConnell claimed that blocking the Garland nomination was “about a principle, not a person.”

    That was a bald-faced lie.

    McConnell’s only principle is that Republican nominations are approved while—wherever possible—Democratic nominations are blocked.

    https://www.thenation.com/article/politics/mcconnell-biden-supreme-court/

    1. Wait. About what time is Hugh Hewitt “right-wing?”

      Hewitt’s a failed, sycophantic, war-mongering, Neo-con, Deep Deep State, RINO wannabe who just loves generational welfare, food stamps, Social Security, Medicare, Obamacare, affirmative action matriculation, affirmative action grade inflation, affirmative action employment, WIC, SNAP, HAMP, HARP, TARP, TANF, HUD, HHS, quotas, forced busing, fair housing laws, non-discrimination laws, minimum wage, rent control, public housing, etc., etc., etc.

      Just ask him.

      “From each according to his ability, to each according to his needs,” said Mr. Marx.

      Hewitt never met a war or redistribution program he didn’t like.

      Hewitt’s a rabid communist (liberal, progressive, socialist, democrat, RINO) and darn proud of it!

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