The Corner

Arizona Senator Mark Kelly’s Commitment to Keep SCOTUS at Nine Justices, Even if Roe Is Overturned

Democratic Senate candidate Mark Kelly speaks at an election campaign party in Tucson, Ariz., November 3, 2020. (Cheney Orr/Reuters)

In the Capitol on Tuesday, I asked Arizona senator Mark Kelly about Massachusetts senator Ed Markey’s bill to increase the number of justices on the Supreme Court from nine to thirteen. 

“Well, I haven’t seen the legislation,” Kelly replied. When I pointed out it’s simply a bill to increase the number of justices on the Supreme Court, Kelly said: “I generally don’t think that’s a great idea. I mean, I think we ought to get back to, you know, working together. The Supreme Court has been, for a while now, nine justices, and so I would certainly have to look at it, but I’m not in favor of that.”

Asked if he could categorically rule out supporting Court-packing in the future under different circumstances, Kelly replied: “Well, I’m generally not in favor of it.”

Kelly’s response that he “generally” opposes Court-packing fell short of a pledge he’d never vote to do it. But on Wednesday afternoon, Senator Kelly’s spokesman Jacob Peters contacted me to argue that Kelly’s comments did amount to a firm commitment to always oppose Court-packing. Asked if Kelly would vote against increasing the number of Supreme Court justices under any circumstances, even if Roe v. Wade were overturned, the senator’s spokesman said “yes.”

Few members of Congress have formally endorsed Markey’s Court-packing bill, but most are refusing to take the threat of packing the Supreme Court off the table. Some progressives hope the threat will be enough to pressure sitting Supreme Court justices and dissuade them from making any decisions that would infuriate the Democratic base. “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 last week. 

“There are few circumstances under which I can imagine Congress expanding the Court, but a big, clear reversal of Roe might be an exception,” tweeted Florida State University law professor Mary Ziegler.

But in a hypothetical post-Roe world, in which states merely had the authority to enact their own legal limits on abortion, packing the Supreme Court with extra Democratic appointees wouldn’t really bring Roe back. It would simply establish the precedent that the Congress and the president can restructure the Supreme Court to their liking. It would also effectively establish legislative authority over abortion policy in the United States.

On Tuesday, when I asked Democratic senator Dianne Feinstein of California if she could see herself supporting a Court-packing bill if the Supreme Court issued a ruling that dramatically changed the status quo, such as overturning Roe, Feinstein replied: “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.”


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