As Charlie notes, Massachusetts Democratic senator Elizabeth Warren has formally come out in favor of adding “four or more” new Democratic-appointed Supreme Court justices in order to give those Democratic-appointed justices at least a 7-6 majority.
Warren’s op-ed is obviously an attempt to intimidate the Supreme Court into upholding Roe v. Wade—literally the first sentence in the op-ed expresses anger that the Court “signaled their willingness” to overturn Roe—but the threat is ultimately empty.
Before Warren endorsed Court-packing, only two Democratic senators had formally co-sponsored the bill to add four seats to the Supreme Court. There are surely more Senate Democrats who will endorse Court-packing, but they’re never going to get close to having 50 seats to nuke the legislative filibuster and pack the Court. See the comments opposing Court-packing from Democratic senators Joe Manchin, Jon Tester, Angus King, Dianne Feinstein, and Mark Kelly.
But the reason to think Democrats wouldn’t actually respond to a decision overturning Roe by passing a bill to pack the Supreme Court rests more on cold logic than it does on the Democrats’ stated skepticism and opposition. If the goal is to put a right to abortion beyond the reach of state legislatures and the federal legislature, Court-packing makes no sense:
Major Supreme Court decisions declaring a constitutional right to abortion — Roe and Doe and Casey — are assertions of judicial supremacy and exercises of “raw judicial power.” Packing the Court effectively ends judicial supremacy on the matter of abortion because it effectively ends judicial supremacy on every matter — those rights the Constitution actually protects as well as those rights invented out of thin air by five or more members of the Court.
If the Court is packed once, then every time the legislature and presidency are held by the same party the Supreme Court will be refashioned in a manner that Congress and the president want.
“My question is: Where does it stop?” Democratic senator Angus King told National Review earlier this year. “Democrats add three seats; Republicans add four more. Pretty soon you have a 100-person unelected third-chamber of the legislature.”
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