Bench Memos

Law & the Courts

Democratic Opposition to Court-Packing Grows

Mark Kelly speaks to supporters at the launch of his U.S. Senate campaign in Phoenix, Ariz., February 24, 2019. (Gage Skidmore)

One week after it was announced, the Democrat-supported court-packing bill, which at this point will not come to the floor in the House of Representatives, faces even bleaker odds in the current Senate. There one of the newest members, Mark Kelly of Arizona, just came out against it. After Kelly responded to a question about court-packing, “Well, I’m generally not in favor of it,” the senator’s spokesman confirmed that he was in fact firmly committed to oppose it under any circumstances.

Kelly joins a growing list of Senate Democrats (and affiliated independents) who have indicated they would vote against the bill or against court-packing in general:

  • Patrick Leahy of Vermont: In reference to senators who defeated President Franklin D. Roosevelt’s 1937 court-packing legislation, he asserted, “The Judiciary Committee once stood against a court-packing scheme that would have eroded judicial independence. That was a proud moment.” (2017)
  • Richard Durbin of Illinois: “Seventy-five years ago, we went through this. . . . And I think the Congress was correct in stopping this popular president named Franklin Roosevelt from that idea.” (2018)
  • Michael Bennet of Colorado: When he was asked about court-packing, the Washington Post reported that Bennet “slammed his head on the table four times.” Making a comparison to Senator Harry Reid ending the filibuster for lower-court judges in 2013, he said, “We didn’t always follow the rules. We changed the rules. People can decide whose fault it was. . . . My point is that we owe something much better than this to the American people.” (2019)
  • Jon Tester of Montana: Regarding the Court’s current composition, “I think we’re fine.” (2019)
  • Dianne Feinstein of California: She called the current number of justices “appropriate” in 2019. This week, when asked whether a dramatic judicial development such as overruling Roe v. Wade could ever motivate her to support court-packing, she replied that that was unlikely, although “anything is possible.”
  • Bernie Sanders of Vermont: “We add two more judges. The next guy comes in — maybe a Republican — somebody comes in, you have two more . . . . And I think that delegitimizes the Court.” But he proposed rotating circuit judges to do Supreme Court duty. (2020)
  • Joe Manchin of West Virginia: “With packing the courts, I’m not voting for that.” (2020)
  • Kyrsten Sinema of Arizona: Her spokesperson said, “Senator Sinema opposes court-packing.” (2020)
  • Jon Ossoff of Georgia: “We shouldn’t expand the Supreme Court just because a justice may be confirmed with whom we disagree on policy.” (2020)
  • Jeanne Shaheen of New Hampshire: Her spokesperson said, “Senator Shaheen supports the president’s creation of a commission on Supreme Court reform to ensure our courts do not become overly politicized; however, she does not believe Congress should expand the Court.” (2021)
  • Maggie Hassan of New Hampshire: Her spokesperson initially said she “has concerns with changing the composition of the Supreme Court” but later added, “To clarify, Senator Hassan opposes changing the number of justices.” (2021)

Some of these past statements are far from ironclad assurances about future votes. We have seen, for instance, how strongly Joe Biden denounced court-packing before he became president and created a commission to study the issue. But any Democratic enthusiasm for court-packing in the Senate seems to be waning, if it was ever there in the first place.

None of this is to suggest the court-packing bill does not pose serious dangers. Its obvious goal is to intimidate sitting justices into ruling in ways that please the Left — and to soften popular opposition to this dangerous idea for a future day in which the Democrats have a wider margin to do the irreparable damage that would come with its passage.

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