This week, the draft majority opinion overturning Roe v. Wade leaked by Politico was the shot heard ’round the world. As Democratic lawmakers across the country continued scrambling to protect the right to abortion, “[s]ome lawmakers on the left are also pushing for seats to be added to the Supreme Court.”
Twitter was aflame with House Democratic lawmakers expounding their viewpoints on the matter. Rep. Ilhan Omar (MN) wrote “Overturning Roe would put the lives of women across the country at risk. It would fly in the face of decades of precent and the overwhelming majority of public opinion. And they will not stop here. Expand the court.”
Rep. Mondaire Jones (NY) tweeted, “To my colleagues: It’s not too late to support the only policy that would restore sanity to this broken Court. It’s not too late to add four seats.”
Rep. Jamaal Bowman (NY) also joined the fray stating, “The House passed the Women’s Health Protection Act to codify Roe v. Wade, and now we need the Senate to end the filibuster so it can become law. In addition, we must expand the court to restore the legitimacy of the institution and protect het rights of millions…”
This isn’t a new call to action—just last year, Senator Elizabeth Warren (MA) wrote a scathing op-ed for The Boston Globe citing that “the current court threatens the democratic foundations of our nation…With each move, the court shows why it’s important to restore America’s faith in an independent judiciary committed to the rule of law…To do that, I believe it’s time for Congress to yet again use its constitutional authority to expand the number of justices on the Supreme Court.”
Senator Ed. Markey (MA) and Representative Jerry Nadler (NY) also introduced a bill last year that would “expand the Supreme Court from nine to 13 justices,” and last October, the White House established bipartisan commission “exploring potential reforms to the high court, said there are ‘considerable’ risks to expanding the bench.”
Notwithstanding these findings, Congressional Progressive Caucus (CPC) did endorse the bill, dubbed the Judiciary Act of 2021. The CPC caucus chair, Rep. Pramila Jayapal released a statement, describing the group as “determined that the urgent work to restore American democracy must include expanding the Supreme Court…The current bench was filled by a partisan, right-wing effort to entrench a radical, anti-democratic faction and erode human rights that have been won over decades.”
Currently, the High Court has a Republican majority, “with 6 justices appointed by Republican administrations versus three Democrat-appointed ones,” and while Congressional Dems are rallying to add more seats to the court, it is highly unlikely that there would be enough consensus for any legislative efforts to actually pass both chambers.
As such, the pressure is on President Biden, and it appears that the President is hesitant to make any changes. “On Tuesday, Press Secretary Jen Psaki said the president has no updated position on such an expansion. ‘The 30-member commission, with a diversity of views, put together a report that the President has been reviewing, so we have no update on his position,’ said Psaki,” a local ABC affiliate reported.
Richard Albert, a Constitutional Law Professor at the University of Texas analyzed the President’s hesitancy with regard to expansion, “including his belief in the importance of SCOTUS being an apolitical institution. ‘It might not be that today, but he believes in that…The second reason is about the consequences…the Democratic Party will not always be in control of Congress. Sometimes it’s going to be the Republican Party, and then they will just pack the Court some more. It’s going to be tit for tat, tit for tat,’” said Albert.
In the interim, it is important to note that the leaked opinion is in fact only a draft, and the justices are still able to make changes to the opinion, as the official ruling is not expected until another two months.
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