FOR IMMEDIATE RELEASE

ICYMI: SCOTUS COMMISSION MEMBERS INDEPENDENTLY SUPPORT COURT EXPANSION IN WASHINGTON POST OP-ED

SAN FRANCISCO, CA (December 9, 2021) — Two members of the Presidential Commission on the Supreme Court have come out in support of Court expansion. In a Washington Post Op-ed, former U.S. District Court Judge Nancy Gertner and Carl M. Loeb University Professor emeritus and professor of constitutional law emeritus at Harvard Law School Laurence M. Tribe endorsed expansion as a risk worth taking to save our democracy from the Court’s “self-reinforcing trajectory.”

We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly.

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One of us is a constitutional law scholar and frequent advocate before the Supreme Court, the other a federal judge for 17 years. After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.

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None of the reforms that have been proposed precisely fit the problem that needs remedying. Term limits cannot be implemented in time to change the court’s self-reinforcing trajectory. And while much can be said in favor of the narrower repairs the commission addressed — such as increasing the transparency of the court’s proceedings, reducing its discretion over its docket or imposing constraints on its use of emergency procedures (“the shadow docket”) — none is adequate.

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Though fellow commissioners and others have voiced concern about the impact that a report implicitly criticizing the Supreme Court might have on judicial independence and thus judicial legitimacy, we do not share that concern. Far worse are the dangers that flow from ignoring the court’s real problems — of pretending conditions have not changed; of insisting improper efforts to manipulate the court’s membership have not taken place; of looking the other way when the court seeks to undo decades of precedent relied on by half the population to shape their lives just because, given the new majority, it has the votes.”

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Hand-wringing over the court’s legitimacy misses a larger issue: the legitimacy of what our union is becoming. To us, that spells a compelling need to signal that all is not well with the court, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.

You can read the full piece on The Washington Post’s website.

Take Back the Court raises awareness about the urgent need to expand the number of seats on the Supreme Court to address the theft of the court by Senator Mitch McConnell during the Obama Administration. Without adding seats, Congress will not be able to restore the right to vote, ensure reproductive freedom, protect workers, halt our climate emergency, or pass new legislation. Court expansion, which can be accomplished without a constitutional amendment, is the only reform that enables the un-rigging of the system and the restoration of democracy. Learn more: https://www.takebackthecourt.today/