Democratic senators say if the Supreme Court strikes a blow against Roe v. Wade by upholding a Mississippi abortion law, it will fuel an effort to add justices to the court or otherwise reform it.
The Supreme Court’s conservative majority this week agreed to hear the Mississippi case, which could dramatically narrow abortion rights by allowing states to make it illegal to get an abortion after 15 weeks of pregnancy.
“It will inevitably fuel and drive an effort to expand the Supreme Court if this activist majority betrays fundamental constitutional principles,” said Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee.
“It’s already driving that movement,” he added.
Blumenthal said it doesn’t mean that a Congress led by Democrats would immediately be able to add justices to the court, but he suggested it would add momentum to reform efforts at a minimum.
“Chipping away at Roe v. Wade will precipitate a seismic movement to reform the Supreme Court,” he said. “It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”
No one knows for sure when the Supreme Court will hand down its decision on the Mississippi abortion law, but it is widely expected to hear arguments after it convenes in October. That could set up a decision next year.
Sen. Sheldon Whitehouse (D-R.I.), another member of the Judiciary Committee, said the court’s review of the Mississippi law raises serious concerns.
“It really enlivens the concerns that we have about the extent to which right-wing billionaire money has influenced the makeup of the court and may even be pulling strings at the court,” he said.
“We’ve got a whole array of options we’re looking at in the courts committee,” he said of the Presidential Commission on the Supreme Court of the United States, which President Biden established by executive order in April.
Whitehouse said even if there isn’t enough support for expanding the Supreme Court by four seats, which is a proposal that House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and Sen. Ed Markey (D-Mass.) introduced last month, other reforms could be pursued.
He cited “easy” reforms such as “proper disclosure and transparency” of the “gifts, travel and hospitality” received by the judges themselves and the “people who are behind front-group amicus curiae briefs” and who were “funding the political advertisements for the last three judges, writing $15 million and $17 million checks.”
Progressive activists argue that expanding the Supreme Court is the best way to tackle what they view as the court’s extreme ideological tilt.
Markey on Friday said trying to work with the “GOP packed” court would be futile.
“Trying to legislate with a GOP packed Supreme Court and the Jim Crow filibuster is always 1 step forward, 3 steps back,” he tweeted.
Brian Fallon, the executive director of Demand Justice, a progressive advocacy group, said any rollback of Roe v. Wade will increase pressure on Democrats to expand the court.
“Groups like ours are doing work every day of the week, 52 weeks a year to build support for that proposal,” he said of expanding the court.
Decisions that come down from the court next week could also have an impact. The court is soon expected to offer a ruling on ObamaCare, for example, as well as one on gun control.
Democrats and allied activists acknowledge that they don’t yet have enough Democratic votes in a 50-50 Senate to eliminate the filibuster, which would be necessary before passing a law to expand the Supreme Court.
And even if the filibuster were done away with and Democrats could move legislation by a simple majority, it would still be a heavy lift to pass a bill to add four seats to the court.
But proponents of court expansion see a crippling blow to Roe v. Wade as moving the needle on court reform more than any other foreseeable factor.
“Part of our strategy here is to build support slowly but surely and grind out as much consensus around these ideas as we can for now and then be ready for if and when a big moment grabs the public attention comes,” Fallon said. “I think [the Supreme Court’s] next term is shaping up to be that.”
Elliot Mincberg, a senior fellow at People for the American Way, another progressive group, predicted that any decision that takes a sledgehammer to the Roe precedent will become a major issue in the 2022 midterm elections.
“Being able to add justices may well depend on first adding more Democratic senators to the Senate, and therefore this could have a significant impact on the midterm elections,” he said. “Some people on the right may be saying to themselves, ‘Be careful what you wish for.’”
Nan Aron, the president of Alliance for Justice, a third progressive group focused on justice issues, said progressives are “galvanized like never before on the issue of the courts.”
“They expect the president and Democratic senators to fight to take back the courts, whether it’s the Supreme Court or lower courts,” she said.
“At the moment we have a majority on the Supreme Court that speaks for a very small segment of America,” she added. “All options are on the table — all measures, extraordinary measures.”
The Supreme Court has shifted dramatically to the right in recent years after Senate Republican Leader Mitch McConnell (Ky.) kept the seat held by the late conservative Justice Antonin Scalia vacant for more than a year by preventing President Obama’s nominee, Merrick Garland, from getting a Senate hearing or confirmation vote in 2016.
President Trump eventually filled Scalia’s seat with Justice Neil Gorsuch, who was touted as a conservative in the mold of Scalia.
Trump then replaced the retiring Justice Anthony Kennedy, who was the court’s swing vote at that point, with conservative Justice Brett Kavanaugh, which sparked a bitter Senate confirmation fight right before the 2018 midterm elections. The fight over Kavanaugh’s nomination came the closest to all-out political war of any confirmation fight since the battle over President George H.W. Bush’s choice of Clarence Thomas to replace late Justice Thurgood Marshall.
Democrats’ frustrations with the court grew last year when McConnell, who was then Senate majority leader, rushed Barrett’s nomination in record time after Justice Ruth Bader Ginsburg, one of the most influential liberals in court history, died on Sept. 18.
McConnell’s effort to compress Barrett’s confirmation process into a month so that senators could vote before the 2020 elections struck Democrats as the height of hypocrisy after he delayed Garland’s nominations for months in 2016.
Sen. Jeff Merkley (D-Ore.), a leading proponent of scrapping the Senate filibuster, said “there’s no question the court’s legitimacy has been deeply damaged by the theft of a Supreme Court seat and of the change in rules so there wasn’t even an appropriate confirmation process,” referring to McConnell’s moves to block Garland from getting a vote.
He said “controversial court decisions will probably focus attention on the issue” of court expansion but acknowledged “there’s no easy answer on how to restore the court to be fully legitimate, non-political arbiter of the Constitution.”