The Supreme Court’s ruling striking down Roe v. Wade, along with other decisions this term that infuriated Democrats, are fueling a fresh round of calls to reform the court.
But Democratic lawmakers are largely steering clear of such talk for fear of looking radical ahead of a midterm election where the strategy is to paint Republicans as extremists.
Sen. Ed Markey (D-Mass.), a leading Senate progressive, on Tuesday seized on the court’s recent decisions to renew his call to expand the court.
“We need to repeal the filibuster so that we can expand the Supreme Court to reclaim the two stolen seats on a now illegitimate court, which are stealing the rights of the American people,” Markey declared at a local event covered by the Boston Herald.
Sen. Elizabeth Warren (D-Mass.) on Tuesday also called for the abolition of the Senate filibuster to make it easier to reform the court.
“The United States Supreme Court is out of control and Congress needs to react quickly,” she said.
But Markey and Warren are in a very small minority among Democratic lawmakers in Congress calling for adding seats to the high court. They and Sen. Tina Smith (R-Minn.) are the only three sponsors of legislation introduced by Markey last year to expand the Supreme Court from nine to 13 seats.
Sen. Maggie Hassan (N.H.), a vulnerable Democrat up for reelection in November, told a reporter for Politico Monday that she has “concerns” about expanding the court and thinks Democrats should be more focused on winning races in order to protect abortion rights in the Senate.
Democratic leaders have either avoided or dismissed talk of adding seats to the court, where Republican appointees now hold a 6-3 majority. Five of those six are considered very conservative: Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett
Schumer last month declined to say what reforms he might endorse after a draft opinion of the abortion decision in Dobbs v. Jackson Women’s Health Organization leaked.
“We cannot have a right-wing court run America. How that changes, we’ll see,” he said.
President Biden’s staff over the weekend made clear that he does not support expanding the court, despite growing pressure from liberal activists.
“That is something that the president does not agree with,” White House press secretary Karine Jean-Pierre told reporters Saturday.
Speaker Nancy Pelosi (D-Calif.) last year said she did not support legislation to expand the court and didn’t plan on bringing any bill to do so to the House floor.
But Pelosi also hedged, saying it’s “not out of the question” it could be considered more seriously in the future.
Democratic strategists say candidates should keep the focus on the court’s rulings instead of making themselves targets by calling for court expansion, which most Americans don’t support.
An NPR-PBS News-Marist poll of 941 adults around the nation found that while 56 percent of respondents oppose overturning Roe v. Wade and 56 percent worry that the court could undermine rights to contraception and same-sex marriage, a majority — 54 percent — do not want more justices added to the court.
“Democrats who are running either as challengers or for reelection in this cycle are going to focus on kitchen table issues far more than they are on the idea of court expansion. The conversation on court expansion was debated in the 2020 presidential election,” said Ray Zaccaro, a Democratic strategist and former Senate aide.
“It has found support and voice in the progressive wing of the party, however in my view most of the Democratic candidates who are in this cycle are going to want to talk about the issues that matter most to voters,” Zaccaro said of calls to expand the court, but he advised that Democratic candidates should focus more on the court’s decisions to strike down abortion rights along with a New York state law strictly limiting the carrying of conceal weapons.
The court is expected to soon hand down a ruling that would dramatically limit the power of the Environmental Protection Agency to regulate greenhouse gas emissions from power plants
But Zaccaro said that to most voters, talk of expanding the court “sounds incredibly theoretical” and there are better arguments to make in an election “where there are so many real tangible issues that voters are really concerned about.”
It may be difficult for Democratic senators and candidates to keep talk of court reform on the back burner in the wake of the final decision in Dobbs, which is energizing the party’s base in an election cycle when Republican voters have shown more enthusiasm for months.
Mike Lux, a Democratic strategist who works with prominent liberal groups, said “there are a lot of things that can be done as checks and balances on the Supreme Court besides just expand the court.”
Democratic lawmakers have also discussed placing term limits on the justices or imposing a judicial code of ethics on justices to limit the influence of special interest groups.
Any of the proposals, however, would require ending the Senate’s filibuster rule to get around Republican opposition, and Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have repeatedly said this Congress that they won’t support changing the filibuster rule.
Lux predicts pressure on Democratic lawmakers to act will grow as the court continues to hand down conservative rulings that incense their core supporters.
“If they keep taking these incredibly extreme positions that are totally out of touch with public opinion, I think that will absolutely ease the way for Democrats doing something to change the way the court works,” he said.
“The more extreme they get, I think the more Congress and the White House will respond and think through what are the ways to rein in the court,” he added.
Bob Borosage, co-founder of Campaign for America’s Future, a progressive advocacy group, said Justice Thomas’s call to review other landmark decisions establishing the right to contraception, consensual gay sex or same-sex marriage is a warning about how the court may rule in the future.
“I think the court now has so stripped its legitimacy that either we’re going to get term limits or we’re going to get expansion if there’s ever a [large] Democratic majority” in Congress, he said
“Dobbs changes the game and Alito’s opinion and Thomas’s concurrence. … I think that’s going to drive this debate in a different way,” he said.
He said Democratic senators know they don’t have the votes now to reform the court and “a lot of them are institutionalists who don’t want to tamper with the institution.”
“But think these decisions make clear the legitimacy of the institution has been shredded so the time for change has come,” he said.