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This week, Sen. Elizabeth Warren 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 Rep. Jerry Nadler, Sen. Ed Markey, 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 Joe 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 an element of release to 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 Brett Kavanaugh, Sen. Sheldon Whitehouse 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 op-ed 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.