In a new piece on the homepage, I ask Senate Democrats about legislation to increase the number of Supreme Court justices from nine to 13. Most of them have declined to take a position, but several Senate Democrats have pledged to oppose Court-packing under any circumstances:
“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.