Democrats warn Supreme Court that overturning Roe v. Wade will 'fuel' court-packing push

The annual March for Life concludes at the U.S. Supreme Court in Washington, D.C., U.S. January 27, 2017.
The annual March for Life concludes at the U.S. Supreme Court in Washington, D.C., U.S. January 27, 2017. | Reuters/James Lawler Duggan

Democrats are vowing that any action by the United States Supreme Court 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 Supreme Court 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. 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 court 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 Supreme Court precedent in Roe v. Wade establishing the right to obtain an abortion nationwide.

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According to The Hill, Sens. Richard Blumenthal, D-Conn., and Sheldon Whitehouse, D-R.I., are among the lawmakers promising to push for changes to the Supreme Court 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 Supreme Court, an idea derided by critics as “court packing,” have grown considerably since the confirmation of Amy Coney Barrett as an associate justice to the Supreme Court 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 Supreme Court 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 Supreme Court 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 Supreme Court 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 Supreme Court has gained little traction, as House Speaker Nancy Pelosi, D-Calif., 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 Supreme Court 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 Supreme Court, 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 Supreme Court, 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 longest-serving liberal justice on the court, echoed his late colleague’s concerns. He warned about the implications of court-packing at Harvard Law School last month, 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 Supreme Court 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 Supreme Court 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 Supreme Court 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 Supreme Court 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.

On Monday, 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 U.S. Supreme Court and achieve through the court’s power what they cannot through other branches of government.” 

Ryan Foley is a reporter for The Christian Post. He can be reached at:

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