Senate Democrats say discussions about reforming the Supreme Court are picking up steam in the wake of decisions striking down Roe v. Wade and limiting the EPA’s ability to regulate climate-warming emissions.
But the talk is being fueled by progressive senators while vulnerable Democratic incumbents, fearing backlash, are keeping their distance.
The proposals under discussion include expanding the Supreme Court, imposing term limits on justices and requiring the high court to adopt a code of ethics to shed more light on special interest groups trying to influence its rulings.
Democrats acknowledge they don’t have the votes to expand the Supreme Court or place term limits on justices, though they say the recent rulings by the court are fueling support for those ideas.
But senators are more optimistic about building support for a judicial code of ethics in the more immediate future.
“Definitely better disclosure of guests and hospitality has momentum because, although the Supreme Court tried to duck it, the Judicial Conference is looking into it,” said Sen. Sheldon Whitehouse (D-R.I.), a member of the Senate Judiciary Committee, referring to the national policymaking body for the federal courts.
“Definitely sussing out who the dark money donors behind the right-wing amici has momentum because again, although the Supreme Court has tried to suppress that, the Judicial Conference has gone ahead to make inquiries,” he added.
Whitehouse noted that Supreme Court justices are the only federal judges not bound by the code of conduct for U.S. judges.
“I think it’s becoming increasingly clear that having a Supreme Court that does not follow the ethics code of every other judge and that has weaker ethics and reporting requirements than all other equivalent federal officials in the legislative and executive branches is not a sustainable position,” he said.
Sens. Ed Markey (D-Mass.) and Elizabeth Warren (D-Mass.) over the July 4 recess called for abolishing the Senate’s filibuster rule to allow Democrats to expand the court.
“We need to repeal the filibuster so that we can expand the Supreme Court to reclaim the two stolen seats on a now illegitimate court, which are stealing the rights of American people,” Markey said at an event in Boston after the court struck down Roe v. Wade, the landmark abortion rights case, last month.
In a December op-ed published in The Boston Globe, Warren warned “the court’s 6-3 supermajority will continue to threaten basic liberties for decades to come.”
She called on Congress to expand the number of justices on the court and prohibit justices from accepting all-expenses-paid trips and other forms of generous hospitality.
But Senate Democrats in tough reelection races are keeping their distance from the reform talk, which they worry could spark a backlash from moderate and independent voters in the fall elections.
An NPR-PBS News-Marist poll of 941 adults around the country found that 54 percent of Americans do not want the court expanded to include more justices.
“You’d have to talk about specific details, but I have not been in favor of expanding the size of the court,” said Sen. Mark Kelly (D-Ariz.), who’s up for reelection in a state that Biden narrowly won.
Sen. Raphael Warnock (D-Ga.), another vulnerable incumbent, waved off talk of court reform Tuesday.
“Right now, I’m focused on lowering costs for Georgians who are pushing their way back and want to see us cap the cost of insulin, which is a bill we need to get done,” he said, indicating he wants to stay focused on fighting inflation.
Sen. Maggie Hassan (D), who faces a competitive race in New Hampshire, told reporters on a call during the July 4 recess that she doesn’t support expanding the court, either.
Other centrist Democrats are also pushing back on calls to expand the court to balance out the 6-3 conservative majority established by former President Trump, who appointed three justices.
“I’ve been opposed to that,” Sen. Jon Tester (D-Mont.) said in May.
But momentum is starting to shift within the Senate Democratic Conference in favor of judicial reforms, driven in large part by the fury of Democratic base voters over the court’s recent decisions on abortion and climate change.
Democrats are also angered by the court’s decision striking down a 108-year-old New York law strictly limiting who can carry a concealed handgun.
Senate Rules Committee Chairwoman Amy Klobuchar (D-Minn.) said Tuesday she has always been open to expanding the court and imposing term limits on justices, adding she “continue[s] to think we should look at those” reforms.
Senate Health, Education, Labor and Pensions Committee Chairwoman Patty Murray (D-Wash.) said “a lot of people are talking about a lot of that.”
So far, only Warren and Sen. Tina Smith (D-Minn.) have co-sponsored Markey’s bill to expand the Supreme Court from nine to 13 justices, but other Democratic senators are now taking a closer look at the bill.
“It’s not just the Dobbs decision that has really focused my attention on court reform, it’s the EPA decision” and the decision striking down New York’s concealed carry law, said Sen. Mazie Hirono (D-Hawaii), a member of the Judiciary Committee, referring to Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion.
“I would support not just expanding the numbers on the court but also term limits. And they should have a code of ethics,” she said.
Sen. Michael Bennet (Colo.) is one Democrat facing a challenging reelection race this year who says he’s open to reforming the ethics rules for the Supreme Court.
“I would certainly support a code of ethics and I’m thinking about term limits, but I haven’t reached a conclusion yet,” he said. “I do think we need to find a way to take the partisan politics out of the confirmation process.”
Imposing term limits or a code of ethics would need at least 10 Republican votes to overcome a filibuster, a challenging proposition given how politically charged the national debate over the high court has become.
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) on Tuesday said proposals to expand the court aren’t going anywhere as long as the Senate’s filibuster rule remains in place, but he thinks an ethics bill could gain traction.
He pointed to reports that conservative Justice Clarence Thomas’s wife urged former White House chief of staff Mark Meadows to encourage former President Trump not to concede the 2020 election as a serious conflict of interest.
“Certainly a code of ethics is obvious, particularly with the Clarence Thomas situation,” he said.