I’ll start by giving honor to whom honor is due. No one has had more of an influence on my political career, including my decision to run for office, than Barack Hussein Obama. He remains the most inspiring political figure in my lifetime. That’s why, as a college student, I knocked on doors for him in Nevada. Cried the night he won the Iowa Caucuses. Worked in his Justice Department and even defended him against the mob of leftier-than-thou Internet activists who never seem to understand the practicalities of governing.
For more than a decade, I have looked to him for moral leadership, and have been stirred to action by what he—quoting Martin Luther King Jr.—has described as “the fierce urgency of now.” So imagine my disappointment when, in a recent episode of Pod Save America, I heard my icon dispensing with that sense of urgency to oppose Supreme Court expansion, a now-popular movement to add justices to the Supreme Court in order to save democracy and protect the fundamental rights under assault by the court’s far-right majority. In explaining his opposition, Obama used the same tired, defeatist talking points I’ve heard from House and Senate colleagues—namely, that it will further politicize the court and that Republicans will attempt their own court expansion if they ever regain control of government.
I understand these concerns, but we cannot afford the paralysis that comes with them. Time is running out. The question before us, to be resolved over the next two election cycles, is whether America will be a democracy moving forward. And even that is generous. The United States didn’t have a true, multiracial democracy prior to the Voting Rights Act of 1965, and arguably has not had one since Shelby County v. Holder, a 2013 decision in which the Supreme Court’s conservative majority gutted that crowning achievement of the civil rights movement, unleashing the present-day wave of racist voter suppression in states like Georgia, Florida, Texas, and Arizona. Based on two voting rights cases the Roberts court has granted certiorari for this term, the justices will weaken what remains of the Voting Rights Act and further dilute the electoral power of racial and ethnic minorities in America.
The Supreme Court isn’t just hostile to the right to vote; the conservative justices are on a rampage against other fundamental rights, to say nothing of our health and safety. The very same month that they expanded gun rights and gutted the EPA’s ability to address climate change, they ended the 50-year-old right to an abortion in Dobbs v. Women’s Health Organization. Justice Clarence Thomas, in his concurring opinion, boldly previewed what’s next on the chopping block: the constitutional rights to marriage equality, same-sex intimacy, and contraception.
It is against the backdrop of this dystopian hellscape that Obama’s warnings about court expansion are so dangerously misguided. During the interview on Pod Save America, he cautioned that “playing such explicit political games” as adding seats to the Supreme Court would further erode faith in the institution. I, of course, share Obama’s concern over the court’s legitimacy. Following the leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, a poll found confidence in the court to be at its lowest since Gallup started keeping track 50 years ago. Only 25 percent of adults said they had “a great deal” or “quite a lot” of confidence in the court. But what Obama ignores is that faith in the Supreme Court is at its nadir largely because the court’s decisions are out of step with American public opinion. Adding four justices so that there is once again a pro-democracy, pro-fundamental rights, pro-health and -safety majority would help restore confidence in the institution.
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Obama was also right to note that Mitch McConnell’s theft of two Supreme Court seats was a blow to the court’s reputation. Had McConnell not invented a rule to hold Merrick Garland’s seat vacant for 14 months following the death of Justice Antonin Scalia—only to go back on that rule years later to rush through the confirmation of Amy Coney Barrett as votes in the presidential election were already being cast—liberals would comprise a majority on the court. But the GOP leader’s bad behavior isn’t a reason for Democrats to unilaterally disarm—to run away from restoring balance to the court while we still have the chance. To the contrary, if Obama’s goal is to restore faith, expanding the Supreme Court would remedy the perception that the 6-3 conservative supermajority was arrived at unjustly.
Obama further suggested that Supreme Court expansion would result in good decisions only “for a time,” presumably because Republicans may do their own court expansion at some indeterminate point in the future if they regain control. As I mentioned, McConnell already changed the size of the court for a time. But also, what a terrible reason not to act. I liken this argument to being in a fire and declining to put it out because someone may light another match later on.
Unlike most of my colleagues in Congress, who are overwhelmingly straight, white, older, and wealthy, I feel the blaze of this fire acutely. As an openly gay man, it is my right to get married, and my right to express my love in other ways, that will be taken away over the next few years. As a Black American, it is my ability, and the ability of my family members, to participate equally in elections that will be abridged. As a millennial, it is my generation, and the generations after mine, that will inherit a planet devastated by climate change.
This is existential stuff, and I can’t imagine expecting millions of people, including millions of women who just lost the right to an abortion overnight, to suffer through these deprivations for many years to come while Congress prays for the composition of the Supreme Court to change organically rather than exercise its constitutional prerogative to change the size of the institution.
Changing the court’s size is not a novel idea. Congress has done it seven times in our nation’s history. Following Abraham Lincoln’s assassination, Congress shrank the size of the court from 10 justices to seven in a move to deprive Andrew Johnson of the ability to nominate justices who would be hostile to the political and economic enfranchisement of Black Americans. It’s not too late for the 117th Congress to summon the courage of the Reconstruction Congress. That is the fierce urgency we need today.
In the same interview with the hosts of Pod Save America, President Obama stated that there is a new crop of under-40 somethings in Congress who are willing to “shake things up.” I’ve been one of those members. We’ve come a long way since introduction of the Judiciary Act of 2021, my bill with Representative Hank Johnson and Senator Ed Markey to add four seats to the Supreme Court. Recent polling shows that a majority of Americans, and the overwhelming majority of Democrats, now agree with adding justices. I’ve been grateful for the opportunity to upend the status quo. Someone has to do it.
