If there was ever a hill that Democrats seem intent to die on, it appears to be the potential that the Supreme Court could overturn Roe v. Wade. With the Dobbs case argued weeks ago and the feeling that a 6-3 conservative majority court seems ready to at least begin weakening Roe if not outright overturning it, Democrats have revived their call for expanding the Supreme Court with liberal activist judges. The practice is commonly known as packing the court, or “court-packing.” This is when one side expands the bench with friendly judges to ensure the desired outcome of specific cases. The idea dates back to the 1930s under a scheme proposed by FDR to eliminate opposition to his “New Deal” proposals.
During the 2020 campaign, Biden pledged to launch a commission that would explore whether expanding the Supreme Court made sense, though the results were less than desirable for Democrats:
The Presidential Commission on the Supreme Court is to vote Tuesday on its final report and recommendations, but the panel steers clear of taking a position on many of the most controversial suggestions for changing the court.
Still, the report states pretty unequivocally that Congress does have the power to enlarge the court, but it takes no position on doing so. On term limits, it seems to suggest that a constitutional amendment is likely necessary, and it points to the practical difficulties of implementing term limits at the same time that there are sitting justices with life terms on the court.
Despite Biden’s court-packing commission providing no recommendation on actually expanding the court, extremists like Sen. Elizabeth Warren are pushing such changes and calling on the Senate to act.
Writing in the Boston Globe, Warren explicitly calls for expanding the Supreme Court with the sole intention of making sure Roe v. Wade remains intact:
“This month, a majority of justices on the United States Supreme Court signaled their willingness to gut one of the court’s most important decisions over the past century, threatening to eliminate Roe v. Wade and a person’s right to choose.”
“With each move, the court shows why it’s important to restore America’s faith in an independent judiciary committed to the rule of law. To do that, I believe it’s time for Congress to yet again use its constitutional authority to expand the number of justices on the Supreme Court. I don’t come to this conclusion lightly or because I disagree with a particular decision; I come to this conclusion because I believe the current court threatens the democratic foundations of our nation.”
There’s a reason why the Supreme Court has stayed at nine justices. The constitution doesn’t explicitly state a required number, that’s up to Congress. However, the fear is that once the court simply becomes a tool of the majority party to expand as it sees fit, then the checks and balances between the judiciary, legislative, and executive branches will be lost.
On the contrary to Warren’s misguided and foolishly political op-ed, the Washington Post editorial board warned Democrats of the folly court-packing presents, and instead offered other “court reforms” that are less offensive:
The Washington Post editorial board warned against efforts to “pack” the Supreme Court in the wake of oral arguments over a controversial Mississippi abortion case that did not proceed in progressives’ favor earlier this month.
The editors offer that a more bipartisan way to reform is through term limits. An interval of 18 years, the editors suggest by way of example, could help “lower the stakes of the court confirmation process.” The terms, they suggest, could always end in a “staggered manner” to give each president an equal number of vacancies.
Whatever the proposal is, either expanding the court or reforming the court, Congress would have to be the body to make it happen. The likelihood that either party can muster enough votes to overcome a filibuster and make historic changes to one of the most revered and long-standing pillars of American governance is incredibly low.
For Democrats to attempt this would take 60 votes in the Senate, a majority in the House, and control of the White House. Even then, let’s say there were 60 Democratic Senators, would all of them support court-packing? Not a chance as moderates like Joe Manchin and others have already spoken out against such proposals.
Warren is joined by other progressives in the House hoping to burn down the court to push a widely unpopular left-wing agenda. For the time being, that agenda appears to be going nowhere as Americans will not agree with every Supreme Court decision, but they also don’t agree with torching the nine-justice format in favor of some highly politicized fifteen-judge panel that rotates every election cycle.
This is a losing issue for Democrats and the fact that Biden’s court-packing commission didn’t actually call for expanding the court speaks volumes as to how bad of an idea this truly is.
Warren is standing mostly alone on her island of crazy.
