Why It’s Unlikely Democrats Would Pack the Supreme Court Even If Roe Were Overturned

‘Where does it stop? Democrats add three seats; Republicans add four more. Pretty soon you have a 100-person unelected third-chamber of the legislature.’

Update (November 29, 2021): For a more comprehensive look at the Dobbs case, and why the Court may overturn Roe, click here.

W hen Democratic senator Ed Markey of Massachusetts and House Judiciary Committee chairman Jerrold Nadler of New York introduced their bill in April to increase the number of Supreme Court justices from nine to 13, some advocates of Court-packing made it clear that the bill was meant to put political pressure on sitting Supreme Court justices.

“The Court needs to know that the people are watching,” Democratic congressman Hank Johnson of Georgia, a co-sponsor of the Court-packing bill, said at a press conference announcing the bill’s introduction.

“The threat of expanding the Court may be one reason we have yet to hear what’s next for abortion,” one law professor wrote on Twitter. “There are few circumstances under which I can imagine Congress expanding the Court, but a big, clear reversal of Roe might be an exception.”

Immediately after the bill was introduced, however, prospects of Court-packing seemed dim, even if the Court issued a big decision on whether the federal Constitution allows states to impose significant limits on abortion.

West Virginia Democratic senator Joe Manchin is firmly opposed to expanding the number of Supreme Court justices under any circumstances. Arizona Democratic senator Mark Kelly would also oppose packing the Supreme Court even if Roe were overturned, according to Kelly’s spokesman.

When California senator Dianne Feinstein was asked last month if a decision overturning Roe would cause her to support Court-packing, she told National Review: “Well, I think anything is possible. But is it likely? No, because there’s such a history, and I think the Supreme Court as a body has been historically remarkably appreciated and admired by this country.”

“Liberal push to expand Supreme Court is all but dead among Hill Dems,” read the headline at Politico.

On Monday, the Supreme Court announced the big news that it would hear a case involving Mississippi’s ban on late abortions — those occurring after 15 weeks of pregnancy — with exceptions for when the mother is experiencing a medical emergency or when the unborn child has an abnormality that means the child could not survive outside the womb.

But there’s little sign the abortion case, Dobbs v. Jackson Women’s Health Organization, has moved the needle on Court-packing among congressional Democrats.

Asked Tuesday in the Capitol if the outcome of the Dobbs case would change his views of Court-packing, Maine senator Angus King, an independent who caucuses with Democrats, said: “I don’t think so.”

“My question is: Where does it stop?” King told National Review. “Democrats add three seats; Republicans add four more. Pretty soon you have a 100-person unelected third-chamber of the legislature.”

“I don’t think that any particular case is going to move people one way or the other,” New Jersey Democratic senator Bob Menendez told National Review on Tuesday, when asked if the Dobbs case would change his colleagues’ views on Court-packing.

“Those who have their views about what the Court should look like hold their views regardless” of how the Court rules, he added. Menendez describes himself as “agnostic” on Court-packing.

Democratic Connecticut senator Richard Blumenthal, a member of the judiciary committee, said on Tuesday that Democrats should still approach Court-packing with “extreme caution.”

Asked if a decision substantially paring back or even overturning Roe would change his view of Court-packing, Blumenthal said: “Whether or not it changes my views, it will certainly add to the public clamor for reform. I think we should approach the issue of expanding the Court with extreme caution.”

“I’m not going to speculate on hypotheticals because I still hope the Court will do the right thing,” Blumenthal added. “The legally mandated outcome, if they follow precedent, is to uphold Roe v. Wade.”

It is, of course, very likely that there will be saber-rattling from Democratic activists and members of Congress about Court-packing in the coming months in the run-up to oral arguments this fall in the Dobbs case.

But the reason to think that Democrats wouldn’t actually respond to a decision overturning Roe by passing a bill to pack the Supreme Court rests more on cold logic than it does on the Democrats’ stated skepticism and opposition.

Major Supreme Court decisions declaring a constitutional right to abortion — Roe and Doe and Casey — are assertions of judicial supremacy and exercises of “raw judicial power.” Packing the Court effectively ends judicial supremacy on the matter of abortion because it effectively ends judicial supremacy on every matter — those rights the Constitution actually protects as well as those rights invented out of thin air by five or more members of the Court.

If the Court is packed once, then every time the legislature and presidency are held by the same party the Supreme Court will be refashioned in a manner that Congress and the president want.

Richard Blumenthal surely understands this. He is a leading advocate in the Democratic Party of an expansive right to abortion and a former law clerk to Supreme Court justice Harry Blackmun, the author of the majority decision in Roe.

If it’s very unlikely Democrats would respond to a decision upholding the Mississippi ban on most late abortions with an attempt to pack the Supreme Court, what exactly would they do?

At the state level, liberal legislatures and supreme courts would act to enshrine an expansive right to abortion if they haven’t already done so. Some conservative legislatures would act to establish limits on abortion allowed by the Supreme Court.

At the federal level, Democrats would attempt to pass the Women’s Health Protection Act, a bill sponsored by Blumenthal that would permit abortion in all 50 states throughout all nine months of pregnancy for reasons of mental and emotional health. When congressional Democrats speak of “codifying Roe” in federal law, they are talking about the Women’s Health Protection Act, which would wipe almost all state-level abortion restrictions off the books.

With self-described pro-life Democrats Joe Manchin of West Virginia and Bob Casey of Pennsylvania in the Senate caucus, they don’t have the votes right now to pass the WHPA. But if they keep the House and pick up a couple Senate seats in 2022, they could enact the bill (or some modified version of it) into law. If they pick up two or three seats in the Senate, they may also have the votes to kill off the Hyde amendment and provide unlimited taxpayer-funding of abortion for Medicaid recipients.

But whatever threats progressives and Democrats issue in the coming months, it is unlikely that they’d actually pull the trigger on packing the Supreme Court regardless of how the Supreme Court rules on the Dobbs case.

Update (November 29, 2021): For a more comprehensive look at the Dobbs case, and why the Court may overturn Roe, click here.