On the final episode of The Brief in 2021, we welcomed Brian Fallon, the executive director for Demand Justice, for a great discussion about the group’s efforts to build momentum for expanding the size of the Supreme Court. (You can YouTube it or catch the podcast here.)

I was particularly struck by the final five minutes or so of the discussion and Fallon’s insights on how critical it is politically for President Joe Biden to take on the Supreme Court’s extremism as a top issue in 2022.

Fallon began by saying that when the group conducted polling during the confirmation hearings for Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020, many of the respondents who viewed Roe v. Wade as essential and strongly opposed it being overturned were also among the most likely to say they didn’t believe the landmark abortion ruling was at risk of being overturned. For that reason, Fallon said he believed a ruling that gutted Roe could be a major political event but that it also wasn’t inevitable if Democrats don’t properly rise to the occasion.

Below, I have excerpted from the final part of our discussion.

I don’t think it will just be Planned Parenthood activists that are out in the street. I think you’ll have the potential for independents to be outraged because this is no longer something that is going to just be felt in Texas or Mississippi. (Fallon notes that a state like Wisconsin has a trigger law that makes abortion illegal as soon as Roe falls.) So that’s suddenly going to be a relevant issue in a very purplish state.

So I think that the potential is there for people to be animated. …

But whether that translates to anything real and any true change on this issue is going to be about whether we can get shows of political courage from elected Ds to actually respond in a proportionate way to an announcement like that.

I don’t think elected Democrats can just come out in the aftermath of a ruling gutting Roe and say, please donate to the DSCC. Help us win the Senate back. We’ll protect abortion rights.

Kerry: What do you want to see immediately? Do you want an address from President Biden in the White House?

Fallon: I think it would be good politics—there’s a rich history in this country of presidents taking on runaway Supreme Courts that take unpopular stands on issues.

Abraham Lincoln did it in the 1860s. Everybody invokes FDR and the court expansion plan that he floated that wasn’t ultimately passed. But the campaign that he waged against the court did carry the day in terms of public opinion. …

Abraham Lincoln went to battle with the Supreme Court over the conducting of the Civil War.

Teddy Roosevelt, when he did his third-party run, one of his big causes was taking on the corporate capture of the Supreme Court during in that Lochner era in that gilded age.

And so there’s a rich history of taking on the court for being captured by partisan or corporate interests.

And I think if Joe Biden is reacting to a ruling that guts Roe; if he’s reacting to a ruling that says that concealed carry permits have to be honored in Times Square—in New York, Texans with concealed-carry permits should be able to pack heat and walk in Times Square; and the EPA’s no longer able to regulate greenhouse gasses—those are all winning issues that he should inveigh against the Supreme Court itself.

Joe Biden in general needs villains, he needs foils, and the Supreme Court would be a great one. And so I want him to take it on—I want him to ultimately support adding seats.

But the statement he put out the other day in response to the Dobbs argument was milquetoast, it was blather, and he was rightly criticized for it. I want to see him get animated and take on the court as an institution.

(Here’s more on that statement from Biden when he was asked about the oral arguments on the Mississippi abortion ban.)

If you want to help Fallon’s group build support for legislation to add seats, you can go to demandjustice.org and input your information, and they’ll route you into a Zoom meeting with your Democratic member or senator. Fallon said they have conducted more than 90 of these Zoom meetings with congressional members with over 1,300 constituents participating, and in a dozen instances, members have signed on to the court expansion bill immediately following the meeting—all from the luxury of your own living room!

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