It remains highly unlikely.
It remains highly unlikely.
A t this week’s confirmation hearings for Judge Ketanji Brown Jackson, President Biden’s nominee to replace Justice Stephen Breyer on the Supreme Court, Republicans on the Senate Judiciary Committee sounded the alarm about a Democratic proposal that would increase the number of justices from nine to 13, thus giving the Court a 7–6 majority of Democratic appointees.
In response, many Democratic senators scoffed at the possibility that Congress would embrace Court-packing, but most Senate Democrats have refused to rule it out.
“I haven’t made a decision,” Judiciary Committee chairman Richard Durbin (D., Ill.) told National Review when asked about the Court-packing bill on Wednesday.
Senator Bernie Sanders of Vermont declined to comment, and Senator Raphael Warnock of Georgia was silent when asked about the bill.
“I haven’t joined the bill,” Senator Richard Blumenthal of Connecticut said. Asked whether he could rule out supporting it, he would only add: “I haven’t reviewed it.”
It is very hard to believe that Blumenthal, a former Supreme Court clerk who sits on the Senate judiciary committee, hasn’t reviewed the Court-packing bill. The bill, which is sponsored in the House by Judiciary Committee chairman Jerrold Nadler and has the backing of the left-wing activist group Demand Justice, is all of two sentences long. It doesn’t take many words to write that there will be 13 Supreme Court justices instead of nine.
It is true that the Senate version of Nadler’s bill currently has just three formal cosponsors, but the question has always been whether there will be a groundswell of Democratic support for Court-packing if the Court issues a decision that absolutely enrages Democratic voters — for example, if the Court’s ruling in the Dobbs case, due to be issued this summer, overturns Roe v. Wade and allows states to make their own laws on abortion.
There is no chance that Congress will pass a bill packing the Court in 2022, no matter the outcome of Dobbs, because Democratic senators Joe Manchin and Kyrsten Sinema have made it absolutely clear that there are no circumstances in which they will abolish the 60-vote threshold for overcoming a legislative filibuster — a prerequisite for passing any Court-packing bill. Without Manchin and Sinema, Democrats simply don’t have the votes.
Even if Democrats held the House and picked up the two Senate seats they would need to abolish the filibuster after the midterm elections, it’s unclear there would be 50 votes to pack the Court.
Several Democratic senators say there are no circumstances in which they’d support legislation to increase the number of Supreme Court justices.
“The next step would be to increase it from 13 to 19, and before long we’d have a 50-person Supreme Court that would be an [unelected] body of the legislature, so I’m against it,” Maine senator Angus King, an independent who caucuses with the Democrats, told National Review on Wednesday. Would he still oppose it even if there was a bad ruling, from his perspective, in the Dobbs case? “There’s been already a bad ruling,” King replied without elaborating as he entered an elevator.
“I’ve already said clearly I don’t support Court-packing,” Nevada senator Catherine Cortez Masto told NR on Wednesday. Could anything change her mind? “No,” she said, adding that she agrees “with Ruth Bader Ginsburg: Nine [justices] works, and I don’t support Court-packing.”
“No, I don’t want to increase the [size of the] Court,” Montana senator Jon Tester said. Could anything change his mind on Court-packing? “Ix-nay on that bulls***-ay,” Tester replied. (Students of pig latin will note that “ulls***-bay” would be the proper usage.)
A spokesman for Arizona senator Mark Kelly previously told NR that Kelly would not vote to increase the number of justices on the Supreme Court even if Roe were overturned. Manchin also remains adamantly opposed to the idea.
Of course, politicians change their minds all the time in response to events and changing political incentives. Under pressure from the left, 48 Senate Democrats came out in favor of nuking the legislative filibuster this year — less than five years after many of them signed a letter saying that the existing filibuster rules are an essential protection for the minority party.
But packing the Court is a far more radical and unpopular proposal than changing Senate filibuster rules. And even if the base demands Court-packing, cold logic might convince the Democrats that it would be insane to ever actually pull the trigger on the plan even if they obtained a big-enough congressional majority to do it. If the Court is packed once, then every time the legislature and the White House are held by the same party the Supreme Court will be refashioned in the majority’s image.
If Democrats did gain the Senate seats needed to abolish the filibuster, they would likely enact a radical federal law permitting abortion in all 50 states throughout all nine months of pregnancy. But Court-packing wouldn’t really help them accomplish their true goal, which is to keep a right to abortion that was invented in 1973 beyond the reach of federal and state legislatures.