Democrats Threaten to ‘Pack the Court’

Democrats are vowing that any action by the U.S. Supreme Court (SCOTUS) to alter the legal precedent on abortion will add “fuel” to the push among some in their party to add seats to the nation’s highest court.

Congressional Democrats issued the warning after the SCOTUS announced that it would decide on the constitutionality of Mississippi’s 15-week abortion ban by hearing the case of Dobbs v. Jackson Women’s Health Organization.  [read my blog posting of May 28, 2021]  The state of Mississippi is asking the court to review a lower court decision finding that the ban on abortions more than 15-weeks into a pregnancy is unconstitutional.

Democrats fear that with the SCOTUS consisting of six justices appointed by Republican presidents and three justices appointed by Democratic presidents, the justices could uphold the pro-life state law— thereby striking a blow to the longstanding SCOTUS precedent in Roe v. Wade [in 1973] establishing the right to obtain an abortion nationwide.

According to The Hill, Senators Richard Blumenthal (CT-D) and Sheldon Whitehouse (RI-D), are among the lawmakers promising to push for changes to the SCOTUS— if the nearly half-century-old court decision is overturned.  “It will inevitably fuel and drive an effort to expand the Supreme Court if this activist majority betrays fundamental constitutional principles,” Blumenthal said.  “It’s already driving that movement.”

Calls for adding more justices to the SCOTUS— an idea derided by critics as “court packing”— have grown considerably since the confirmation of Amy Coney Barrett as an Associate Justice shortly before the 2020 presidential election.  Barrett’s confirmation caused particular outrage because she replaced the late Justice Ruth Bader Ginsburg— a figure beloved by progressives.

Additionally, Democrats have accused Republicans of hypocrisy because they blocked the confirmation of Merrick Garland, who then-President Barack Obama nominated to the SCOTUS in 2016— his final year in office.  At the time, Republicans argued that because it was a presidential election year, voters should have the opportunity to decide who (between candidates Hillary Clinton and Donald Trump) they wanted to pick the next SCOTUS justice.  In 2020, Democrats maintained that Republicans did not give voters the same opportunity.

Last month, congressional Democrats introduced a bill to increase the number of justices on the SCOTUS from nine to 13.  If passed, the legislation would nullify the effect of the nominally 6-3 conservative majority— by giving President Joe Biden the opportunity to appoint four new justices to the bench.  However, the legislative effort to increase the size of the SCOTUS has gained little traction— as House Speaker Nancy Pelosi (CA-D) has said that she will not bring the legislation up for a vote.

A poll conducted by Mason-Dixon Polling & Strategy, Inc. on behalf of the conservative religious liberty law firm First Liberty Institute, found that 68% of Americans opposed the generic addition of justices to the SCOTUS compared to 27% who supported the idea.

While the American people as a whole gave the proposal of “court packing” a cool reception, Democrats were split on the idea— with 50% expressing support for it.  When asked specifically about the legislation introduced by congressional Democrats to add four seats to the SCOTUS, 65% of respondents opposed the bill while 31% supported it. A supermajority of Democrats (63%) indicated their support for the proposal, while the overwhelming majority of Republicans (95%) expressed disapproval of the effort.

Although prominent progressives have wholeheartedly embraced court-packing, some liberals, including the late Ginsburg herself, have expressed hesitancy about altering the composition of the highest court in the land.  In 2019, Ginsburg weighed in on the push to add justices to the SCOTUS, which was much more subdued at the time.  “If anything would make the court appear partisan it would be that,” she asserted.  “One side saying when we’re in power we’re going to enlarge the number of judges so we’ll have more people who will vote the way we want them to.  So I am not at all in favor of that solution to what I see as a temporary situation.”

Stephen Breyer, the (now) longest-serving liberal justice on the SCOTUS, echoed his late colleague’s concerns.  He warned about the implications of court-packing at Harvard Law School recently, urging “those whose instincts may favor important structural change or other similar institutional changes such as forms of court-packing to think long and hard before they embody those changes in law.”  Stressing the need to preserve the court’s reputation as “guided by legal principle, not politics,” Breyer emphasized that “structural altercation motivated by the perception of political influence can only feed that latter perception, further eroding that trust.”

As progressives in Congress advocate for legislation to increase the size of the SCOTUS outright, Biden signed an executive order establishing a Presidential Commission on the Supreme Court of the United States, a bipartisan group of constitutional scholars and retired judges that will look at the feasibility of possible reforms to the court.  The commission will report its findings to the president after 180-days.

Blumenthal pointed to expanding the SCOTUS as one of many potential remedies that advocates of a “seismic movement to reform the Supreme Court” would seek to implement in the wake of a hypothetical court decision “chipping away at Roe v. Wade.”  Other potential reforms floated by Blumenthal include “making changes to its jurisdiction, or requiring a certain number of votes to strike down certain past precedents.”  Whitehouse listed other potential reforms to the SCOTUS that could follow a rollback of Roe v. Wade— specifically expressing a desire to require “proper disclosure and transparency” of the “gifts, travel and hospitality” received by the judges as well as “people who are behind front-group amicus curiae briefs” that were “funding the political advertisements for the last three judges, writing $15-million and $17-million checks.”

Even as the SCOTUS has yet to hear arguments in the case surrounding the Mississippi abortion law, Whitehouse is working to raise awareness about what he claims is the takeover of the court by special interest groups.  Recently, Whitehouse announced that he was “starting a new series of Senate floor speeches (with a brand-new chart) exposing the scheme by right-wing donor interests to capture the SCOTUS and achieve through the court’s power what they cannot through other branches of government.”

Rev. Dr. Kenneth L. Beale, Jr.
Chaplain (Colonel-Ret), U.S. Army
Pastor, Ft. Snelling Memorial Chapel