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Key Abortion Case Has More Democrats Yelling About Court Packing

AP Photo/Jose Luis Magana

The Democratic, pro-abortion reaction to the U.S. Supreme Court being open to overturning or at least weakening Roe v. Wade after they heard oral arguments in Dobbs v. Jackson on Wednesday has been typical but no less concerning. Elected officials are claiming we don't have a democracy because women might not have unlimited access to the so-called right to an abortion. Granted we don't even live in a democracy, but rather a constitutional republican. Another reaction from Democrats comes in the form of renewed calls to pack the Court.


As Seung Min Kim reported for The Washington Post on Thursday, "More Democratic senators are willing to weigh changes to Supreme Court." The timing of the article isn't coincidence. 

The piece lays out early on that "Few senators as of yet are fully endorsing ideas like mandatory retirement for the justices or expanding the number of seats on the nine-person court. But a growing faction, long hesitant to embrace structural changes, say they are now prepared to consider such moves."

That turns out to be a pretty big "But" when you look at what senators are saying. And the "But" only gets bigger, and more concerning. Take remarks from Sen. Brian Schatz (D-HI), for instance:

Sen. Brian Schatz (D-Hawaii) said many Democratic senators have been reluctant to entertain proposals about changing the Supreme Court in the past because “we do respect the separation of powers under the Constitution.”

But Wednesday’s oral arguments, in a case involving a Mississippi law that would bar most abortions after 15 weeks, changed those sentiments, he said. “It is hard to watch that — and I did watch a fair amount of it — and not conclude that the court has become a partisan institution,” Schatz said. “And so the question becomes, well, what do we do about it? I’m not sure. But I don’t think the answer is nothing.”

One cannot say that they "respect the separation of powers under the Constitution," which would apply to respecting the judiciary being a separate branch, and then claim something must be done.


So, a pro-abortion senator had a hard time watching a conservative-leaning Court consider overturning or weakening Roe. Elections have consequences, though, and it was Donald Trump who was elected in 2016, and who got to nominate judges to fill those vacancies when they came up, which the Senate confirmed, especially since it was controlled by the same party that was in the White House. 

If and when a vacancy arises during President Joe Biden's time in office, he'll get to nominate justices to the Court, and it will be up to the Senate to confirm or deny that pick. 

That's how this works.

Other Democrats are more firm in their motivation to pack the Court over an abortion decision that hasn't even come down yet, and likely won't for over six months:

Perhaps the most controversial of the proposed Supreme Court changes is increasing the number of justices. Sen. Edward J. Markey (D-Mass.), Rep. Jerrold Nadler (D-N.Y.) and other Democrats introduced a bill in April to expand the size of the Supreme Court to 13 justices.

Sen. Tina Smith (D-Minn.), a former executive at Planned Parenthood in Minnesota, endorsed Markey’s bill in September. She said she was motivated to embrace changes to the Supreme Court partly by its decision earlier this year to keep intact a restrictive new abortion law in Texas.

“Yesterday, we saw the court is politicized. The question is, what are we going to do about it?” Smith said Thursday. “Are we going to take action to rebalance the court, or are we just going to sort of bury our heads in the sand and pretend that it hasn’t happened?”


Kim did reference other proposals to alter the Court, such as term limits for justices. As Kim also brought up, President Joe Biden had announced a commission to study proposals to potentially "reform" the Court, including court packing and term limits. While a draft from October indicated the commission seemed not yet ready to endorse court packing, its members did seem to be more in support of term limits. 

As Democratic primary candidate, nominee, and now even president, Joe Biden has not provided a sufficient response about his position on court packing, however.

Curt Levey, a constitutional law attorney and the president of the Committee for Justice who testified before the commission in July, referenced court packing in his takeaways on the Dobbs oral arguments. 

He said to "look for Democrats’ calls for packing the Supreme Court to grow louder, both for its own sake and in the hope of influencing one or more of the center-right Justices before a decision in Dobbs is issued." Levey also noted, though, that "court packing will remain a Democratic pipe dream for now."

It's worth offering in contrast that pro-life activists and legal scholars of all sides of the abortion issue have taken issue with the way Roe v. Wade was decided. There's a pretty big argument to make that imposing legal abortion in all 50 states for any reason is a pretty extreme example of the Court engaging in judicial activism. 

Even if Democrats don't ultimately go with court packing or term limits, they are still clutching their pearls about the possibility of Roe being weakened or eliminated. State governors are vetoing pro-life laws, as Gov. Tony Evers (D-WI) just did on Friday, as Landon reported. And, as Madeline reported, Democratic legislators at the state level want to codify Roe into law. 


The Democratically-controlled Congress is also considering the Women's Health Protection Act, which would not only codify Roe into law, but undue a slew of pro-life successes at the state level. White House Press Secretary Jen Psaki has said that Biden has "strong support" for the legislation, which passed the House in September. 

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