Push to expand Supreme Court faces Democratic buzzsaw

A progressive push to expand the Supreme Court is running into an unusual buzzsaw: fellow Democrats.

Calls for Democrats to remake the judiciary are ramping up as Republicans appear poised to put Amy Coney Barrett, a sixth conservative justice, on the bench.

It’s a decision that will have decades-long reverberations, progressives warn, unless Democrats make systemic changes to the judiciary next year if they win back the Senate majority and White House in November, something they are feeling increasingly bullish about.

“If Republicans proceed as expected, Democrats will have every right to consider Barrett illegitimate and pursue structural reform to restore ideological balance to the court,” said Brian Fallon, the executive director of the progressive group Demand Justice. 

But supporters of court reforms face an uphill climb even if Democrats find themselves with a trifecta next year for the first time since 2010, when they lost the House in a Tea Party wave.

Top Democrats ranging from Democratic nominee Joe Biden to congressional leadership have been noncommittal while at the same time, with an eye on keeping the party united heading into Nov. 3, not ruling it out. 

And several rank-and-file Democrats and hopefuls in key races have been cool to the idea even while accusing Republicans of driving the Senate and courts to institutional breaking points by refusing to give Merrick Garland, former President Obama’s final Supreme Court nominee, a hearing or a vote but moving to quickly confirm Barrett. 

“There is no active conversation or deliberation about any changes in court composition,” said Sen. Dick Durbin (Ill.), the No. 2 Senate Democrat and a member of the Senate Judiciary Committee.

The main headache for progressives — beyond getting Biden, a decades-long institutionalist, on board — is the tough math they face that is likely to leave them little room for error and needing nearly every, if not every, vote among Senate Democrats.

Absent a Democratic wave, their margin is likely to be narrow. While FiveThirtyEight, for example, gives the Democrats a 73 percent chance of winning back the Senate, it rates the most likely outcome as a 51-49 split, followed by 52-48 and then 50-50.

Expanding the number of Supreme Court seats would require two steps: nixing the 60-vote legislative filibuster and then passing legislation to change the number of justices from nine. 

If Democrats have a majority capped in the low 50s, that means supporters will need near-unanimous support within a caucus that ranges from progressives such as Sens. Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.) to more red- and purple-state Democrats such as Joe Manchin (W.Va.) and Jon Tester (Mont.) for both steps.

But several current members of the caucus have expressed opposition to getting rid of the legislative filibuster, which a growing number of outside activists and Democratic senators worry will be used by Republicans to block major legislative items including health care, voting rights and even coronavirus relief legislation.

“I think the filibuster serves a purpose. … I think it’s part of the Senate that differentiates itself,” Sen. Dianne Feinstein (D-Calif.) told reporters in the wake of the late Justice Ruth Bader Ginsburg’s death.

Feinstein sparked progressive ire over her handling of Barrett’s confirmation hearing, including calls from a growing number of organizations for her to step down as the top Democrat on the committee. If Democrats win back the majority Feinstein is in line to become the chairwoman. 

But members of the Senate Democratic Conference including Manchin, Kyrsten Sinema (D-Ariz.) and Angus King (I-Maine), who caucuses with Democrats, have expressed opposition to nixing the filibuster, expanding the Supreme Court or both.

“I will do anything and everything I can in a bipartisan way to make this place work,” Manchin said. “I’m going to be bipartisan, and nobody is going to stop me or change me, OK?”

Those senators will face intense pressure from outside groups as well as some of their colleagues to shift their positions if Democrats find themselves in the majority in January. There are already signs of seismic shifts happening within the caucus in anticipation of a win next month, with senators long viewed as unlikely to support systemic reforms now signaling that they are open.  

Sen. Chris Coons (D-Del.), a close Biden ally, co-organized a letter in 2017 defending the legislative filibuster. But he’s since signaled that he’s open to nixing it and, on Sunday, told CNN that he was “not a fan” of expanding the court but was open to increasing the number of justices.

Republicans have seized on the talk of expanding the Supreme Court to try to weaponize the issue in the final weeks of the Nov. 3 election.

Senate Majority Leader Mitch McConnell (R-Ky.) has accused Democrats of gearing up to throw a “court-packing tantrum that would wreck the judiciary.”

After his Democratic challenger, Amy McGrath, didn’t say if she supported expanding the court during their recent debate, McConnell interjected, “You notice she won’t answer the question. And Joe Biden won’t answer the question either.”

And former Colorado Gov. John Hickenlooper (D) dodged a question during a recent debate with GOP Sen. Cory Gardner (Colo.), who is viewed as one of the most vulnerable incumbents up for reelection this cycle as he fights to hold on in a state won in 2016 by former Secretary of State Hillary Clinton. 

But several Democratic hopefuls in key races have gone on record against expanding the Supreme Court, underscoring the hole progressives will need to dig out of even if their party controls both the House, Senate and White House next year. 

Democratic Senate candidates Mark Kelly in Arizona, Cal Cunningham in North Carolina and Jaime Harrison in South Carolina have all come out against expanding the Supreme Court as they try to unseat GOP Sens. Martha McSally (Ariz.), Thom Tillis (N.C.) and Lindsey Graham (R-S.C.), respectively.

Theresa Greenfield, who is trying to unseat GOP Sen. Joni Ernst in Iowa, said during a recent campaign stop that she couldn’t support it, saying that “packing the court with more justices would be too divisive.”

And Sara Gideon, who has expressed doubt about expanding the Supreme Court, went a step further during a debate with GOP Sen. Susan Collins (Maine) on Thursday night, calling for reestablishing the filibuster for court picks. 

“How do I think we should get back to an independent judiciary? … We should go back to having a filibuster in place for judicial nominees,” Gideon said during the debate.

Senators can still technically filibuster court picks, but the move is toothless because it requires only a simple majority — the same number needed to confirm a nominee — to break the procedural deadlock. Democrats in 2013 nixed the 60-vote filibuster for lower court picks and executive nominees, and Republicans got rid of the same threshold for Supreme Court nominees in 2017.

The opposition to court packing comes as Biden as well as Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles Schumer (D-N.Y.), who will be the majority leader if his party wins in November, have been noncommittal.

Biden, going his furthest on the issue, reiterated during a town hall that he’s “not a fan” of court packing but that he intends to take a position by Nov. 3.

“It depends on how much they rush this,” he said, referring to if Republicans confirm Barrett before the election — something they are poised to do.

Schumer, during an MSNBC interview on Barrett’s hearing, said that Democrats “would certainly be in the constitutional right to do it” but that Republicans were trying to use the issue as a “smoke screen.”

“This idea that Democrats are packing the court, [Republicans have] already done it,” Schumer added. “As for ourselves, what I’ve said is we’re going to win the election, God willing … and then everything will be on the table. That’s all. But we’re not going to fall into the trap of debating that now.”