Liberals Divided on Court Packing Following Texas Abortion Law Decision

Members of the Supreme Court pose for a group photograph at the Supreme Court in Washington on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer, and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, and Associate Justice Amy Coney Barrett. Erin Schaff/Pool/Getty Images

News Analysis

Following the Supreme Court’s 5-4 decision late Wednesday night to deny an emergency injunction against a Texas abortion bill, some abortion advocates are reigniting longtime liberal cries to add new justices to the Supreme Court. But there is far from a consensus on this front from prominent Democrats.

Democratic officials quickly responded to the decision as a violation of the landmark Roe v. Wade. That case that determined that states do not have the right to unilaterally ban abortions, but could put some restrictions on the practice as long as it was accessible within the first trimester. But the opinion in that case relied on now-outdated scientific data and left the full extent of constitutionally protected access to abortion unclear.

Since then, lawmakers in red states have been unhappy with the continuance of a practice in their states that they found morally repugnant, and have for years pushed the boundaries of Roe v. Wade interpretation. When the Supreme Court shifted decidedly in Republicans’ favor under President Donald Trump, many states—particularly in the south—became even bolder.

A series of states since then have passed abortion laws designed to directly challenge Roe. Texas’ law is only the latest entry in a series of similar bills banning abortion providers from ending the life of an unborn child once a heartbeat is detected.

But the Texas law is the first of its kind to survive Supreme Court review.

Biden Administration Promises Action

The White House was quick to respond to the decision.

Vice President Kamala Harris in a tweet called the rejection “a significant blow to Roe v. Wade.” She promised that the Biden administration “will not stand by and allow our nation to go back to the days of back-alley abortions.” She concluded: “We will use every lever to defend the right to safe and legal abortion. We will fight this.”

At a White House press conference, press secretary Jen Psaki was asked about the decision and whether the administration had concerns that it would inspire other states to pass similar laws.

Psaki responded, “Of course we’re worried that in states where there is a movement and effort to prevent women from having access to healthcare will copy-cat [the Texas law].” Psaki said that the president considers the situation “urgent” and says that President Joe Biden has “asked his team to act as quickly as possible to see what our options are.”

It is not yet clear what those actions will be, but some on the left hope—and some on the right fear—that the president or Congress will try to “pack” the Supreme Court with liberal, pro-abortion judges.

During the presidential campaign of 2020, Biden infamously refused to give a clear answer on whether or not he would pack the court. President Trump pressed the issue, but Biden refused, saying that he was “not going to answer the question.”

Left-Wing Lawmakers, Organizations Call to Pack the Court

Some Democrats have not been quite so unclear about their thoughts on adding new seats to the nation’s highest court.

Sen. Ed Markey (D-Mass.), the sponsor of the controversial “For the People” elections bill, proposed legislation to add seats to the court in April. The “Judiciary Act of 2021” would increase the number of seats on the Supreme Court from nine to 13.

Markey said of the bill: “Senate Democrats have the power to fix this problem [roadblocks to Democratic policy priorities] right now by abolishing the filibuster and passing my legislation to expand the Supreme Court. We need to restore balance to the Court after Donald Trump and Senator Mitch McConnell blatantly stole the seats of Justice [Ruth Bader] Ginsberg and Justice [Antonin] Scalia.”

Because of a Republican-led rule change during the confirmation of Justice Amy Coney Barrett, Democrats would need only a simple majority to approve Biden appointees. If four new seats were added to the court, the balance would shift back into liberals’ favor 7-6.

Later in April, Sen. Mazie Hirono (D-Hawaii) told liberal comedy talk show host Stephen Colbert that she was open to the move. She said that she had long advocated for such an expansion, and argued that the number of SCOTUS justices “is not concrete … [and] not written in the Constitution.” She also criticized then-Senate Majority Leader Mitch McConnell (R-Ky.) for refusing to consider Merrick Garland’s nomination to take the place of the late Justice Scalia.

“We need a court,” concluded Hirono, “that’s going to make decisions based on objective facts as opposed to some kind of ideological agenda.”

Now liberals, terrified of an outright revocation of Roe, are intensifying these calls.

Robert Cruickshank, a campaign director at the influential left-leaning group Demand Progress, criticized rejecting the move to expand the court, writing on Twitter: “There are plenty of pundits and analysts out there who will want you to think they are smart and clever for arguing against expanding the Supreme Court. They are not.”

Sen. Tina Smith (D-Minn.) also joined the fray on Twitter, calling the decision “a blatant attack on women’s freedom.”

She said that the outcome on Wednesday was “the culmination of a 40 year effort by Republicans to radically remake the courts with the help of dark money and the Federalist Society.”

As to what she and Senate colleagues planned to do about it, Smith said “we’re going to fight. But I want to be clear that there is not a magical lever of power we could pull but are avoiding.”

Such a lever, like the abolition of the filibuster or the expansion of the Supreme Court, “would fail” to pass the Senate. “I wish it were different,” she said.

Brian Fallon, the executive director of Demand Justice, another influential left-wing group, proposed the same solution. Fallon wrote on Twitter: “The most effective legislative response to what the Supreme Court is doing to Roe is to pass the Judiciary Act of 2021 to add seats to the Court. Other remedies - including codifying Roe - are nice but still give Kavanaugh/Thomas/Alito the last word and that’s a recipe for failure.”

Court-Packing Faces Challenges From Prominent Democratic Opponents

However, there is far from a consensus on this solution among liberals.

Most notably, liberal-leaning Justice Stephen Breyer has implied that he thinks it would be a mistake. Generally, Supreme Court justices do not comment on politics as a matter of decorum, a policy that most follow but that some, like the late Justice Ginsburg, famously flouted. With this in mind, Breyer gives a thinly-veiled criticism of court-packing schemes.

In his new book, “The Authority of the Court and the Peril of Politics,” the octogenarian wrote that advocates of adding new seats to court should “think long and hard before embodying those changes in law.”

Sen. Joe Manchin (D-W.Va.), a thorn in the side of progressive Democrats since the party took the majority this year, has also made his position clear on the matter.

On a Fox News interview during the Georgia runoffs that would ultimately give Democrats a slight majority, Manchin discussed proposals by progressives to abolish the filibuster and to pack the court.

Manchin acknowledged that a 50-50 composition would give Democrats a slight majority with the vice president’s tie-breaking vote. “But if one senator does not vote on the Democratic side then there is no tie and there is no bill,” he said, adding that with that in mind, “I commit to you and to all of your viewers … when [progressives] talk about packing the courts or ending the filibuster, I will not vote to do that.”

He reaffirmed that he “will not be the 50th Democrat voting to … stack the court.”

Sen. Kyrsten Sinema (D-Ariz.), a moderate ally to Manchin, has also expressed opposition to the measure. Asked about the senator’s position in 2020, her office said simply that “Senator Sinema opposes court-packing.”

Several of the newest members of the Senate agree. A spokesman for Sen. Mark Kelly (D-Ariz.) confirmed that Kelly was firmly against the proposal. Sen. Jon Ossoff (D-Ga.) also opposed the move, saying in 2020 that Democrats “shouldn’t expand the Supreme Court just because a justice may be confirmed with whom we disagree on policy.”

More seasoned members of the Senate have said the same. Earlier this year, spokesman for Sen. Maggie Hassan (D-N.H.) made clear that “Senator Hassan opposes changing the number of justices.” Sen. Jeanna Shaheen’s (D-N.H.) office said that “Senator Shaheen supports the president’s creation of a commission on Supreme Court reform to ensure our courts do not become overly politicized; however, she does not believe Congress should expand the Court.”

Court-Packing Unlikely to Happen

As a result, any effort to pack the courts through Congress is likely to fail.

With their thin majority, Democrats will need to be completely unified to expand the Supreme Court. But even if most historical opponents of the measure change their mind in the wake of this decision, it is exceedingly unlikely that this change will be unanimous.

Any movement on this front will have to come from the White House. This will be difficult as well, as Biden would have little precedent to support an attempt to pack the courts through the executive branch.

While it is still unclear how exactly Democrats will respond to the Texas law when they return from their recess, court-packing is unlikely to be long considered as a viable way forward.