The Corner

Law & the Courts

Why Democrats Wouldn’t Pack the Court If Roe Is Overturned

From left: Rep. Hank Johnson (D., Ga.), Sen. Ed Markey (D., Mass.), and Rep. Jerry Nadler (D., N.Y.) introduce the Judiciary Act of 2021 aimed at expanding the Supreme Court from nine to thirteen justices outside the court in Washington, D.C., April 15, 2021. (James Lawler Duggan/Reuters)

When Democrats introduced their Court-packing bill earlier this year, some of the sponsors made it pretty clear that the legislation was meant to intimidate Supreme Court justices in upcoming cases.

“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 announcing the bill’s introduction in April.

But as I explain on the homepage, the threat is empty:

  1. There are no circumstances in which the two key moderate Senate Democrats — Joe Manchin of West Virginia, who is pro-life, and Kyrsten Sinema of Arizona — will vote to abolish the filibuster, which would be necessary to pack the Court.

  2. It’s hard to predict the future, but since September 1, Texas, the second-most-populous state in the country, has effectively banned abortion later than six weeks of pregnancy, through a law whose unusual enforcement mechanism (civil lawsuits) was designed to help it evade pre-enforcement challenges. The Texas abortion law hasn’t been the most divisive political issue in the country — pandemic policy and the Afghanistan withdrawal have both been more polarizing — nor even in Texas, where the migrant surge along the border has drawn headlines.

  3. In November, two months after Texas’s law took effect, the Democrats faced a nationwide political backlash. Virginia, a state President Biden carried by ten points against Donald Trump, elected a Republican governor by two points over Democrat Terry McAuliffe, who had made Roe and abortion a centerpiece of his campaign. In Texas, a house district that Biden carried by 14 points elected a Republican by two points.

  4. A political backlash against Republicans in 2022 is possible, of course, but on the off chance that Democrats manage to hold the House and make gains in the Senate next year, there are Senate Democrats in addition to Manchin and Sinema who have said that they will not pack the Court even if Roe is overturned. Indeed, if the goal is putting an abortion right beyond the reach of legislatures, packing the Court would be a foolish and counterproductive response from abortion supporters. It would guarantee that Republicans would respond in kind the next time they control Congress and the White House. If Democrats control the House and have the votes to kill the filibuster in the Senate, a rational response would simply be to pass a federal law enshrining an expansive right to abortion.

  5. Most elected Democrats know that Court-packing is not only irrational, but politically poisonous. That’s why President Biden’s commission threw cold water on the idea, and why there are only two Democrats in the Senate co-sponsoring a Court-packing bill.

 

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