Senate Democrats Try to Intimidate the Supreme Court, but the Threats Are Empty

‘M ore Democratic senators are willing to weigh changes to Supreme Court,” according to the headline of a Washington Post story.

But if you read the article closely, it seems more accurate to say that Democrats are trying to both intimidate the Supreme Court in the Dobbs case and placate the progressive base with threats that are ultimately empty.

The Post reports that “senators appear more likely to consider term limits rather than court expansion.” The threat of term limits is empty because the Constitution establishes lifetime appointments to the Supreme Court: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”

So, term limits would require a constitutional amendment — approved by two-thirds of the Senate and House and ratified by three-quarters of the states. It will never happen.

Yet that’s the proposal that Senator Richard Blumenthal of Connecticut, a member of the judiciary committee and former clerk to Justice Harry Blackmun, “said lawmakers should seriously consider,” the Post reports.

Blumenthal’s talk of term limits looks a lot like someone jingling a set of car keys to distract progressives from Court-packing — something Congress could accomplish without a constitutional amendment but is nevertheless a politically poisonous and irrational response from Democrats who seek to place a right to abortion beyond the reach of legislatures. If Democrats pack the Court once, they simply guarantee that Republicans would respond in kind when they control Congress and the White House.

Democrats will have a tough time taking the first step to packing the Court: abolishing the 60-vote rule for legislation. There’s no chance that either Democratic senator Joe Manchin of West Virginia or Democratic senator Kyrsten Sinema of Arizona will get rid of the legislative filibuster.

Even if the Democrats nuke the filibuster, they don’t have anywhere close to a majority of the Senate in favor of Court-packing. There are only two Democratic senators, Ed Markey of Massachusetts and Tina Smith of Minnesota, co-sponsoring the bill to increase the number of justices from nine to 13 and thus give Democrats a 7–6 majority on the Court.

The number of senators who support Court-packing will certainly increase as Democrats respond to any Supreme Court ruling on abortion, but several of them have ruled it out.

The Post reports:

Others oppose the proposed changes outright.

Sen. Joe Manchin III (D-W.Va.) emphasized Thursday that he did not support enlarging the Supreme Court but said he has not considered other options, such as term limits for justices. But Sen. Jon Tester (D-Mont.) said flatly that he did not support changes such as term limits or mandatory retirement for justices.

“Where does this stuff stop, okay?” Tester said. “I just think mandatory retirement gets into a bigger problem.”

Earlier this year, the spokesman for Arizona Democrat Mark Kelly said the senator would vote against Court-packing even if Roe is overturned. And Maine senator Angus King, an independent who caucuses with the Democrats, expressed strong reservations when asked if overturning Roe would lead Democrats to support Court-packing. “My question is: Where does it stop?” King told National Review last May. “Democrats add three seats; Republicans add four more. Pretty soon you have a 100-person unelected third chamber of the legislature.”

The real risk to the pro-life cause from congressional Democrats is federal legislation that would establish a nearly unlimited right to abortion throughout all nine months of pregnancy. House Democrats passed that bill — the misleadingly named Women’s Health Protection Act — in September, but Manchin and his Senate colleague Bob Casey Jr. of Pennsylvania have not signed on.

If Democrats hold the House, pick up two or more seats in the Senate, and abolish the filibuster, the Democrats’ response to a ruling overturning Roe and Casey will not be Court-packing. It will be that radical abortion bill.