The Corner

Law & the Courts

Senate Democrats Say Supreme Court’s Abortion Decision Won’t Change Their Views on Court-Packing

The Supreme Court building in Washington, D.C., August 29, 2020 (Andrew Kelly/Reuters)

“Looming decisions on abortion and guns fuel calls from left to add seats to Supreme Court,” reads the headline at the Washington Post

The report includes predictable calls from left-wing activists who already supported Court-packing, but what’s most interesting is that the Post‘s story doesn’t include any comments from any congressional Democrats that the case has changed their views on packing the Supreme Court: 

As aggressive as some on the left have been in embracing court expansion, many members of the Democratic caucus on Capitol Hill have, like Biden, been reluctant to endorse dramatic structural changes. The fact that the fate of the Roe decision could be at risk as early as next year has done little to alter that dynamic, even among supporters of access to abortion.”

Democratic New Hampshire senator Jeanne Shaheen tells the Post that the case involving Mississippi’s ban on most abortions late in pregnancy hasn’t made her reconsider her own opposition to Court-packing.

The Post story broadly confirms my own reporting on the homepage

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. […]

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.


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