Democratic Senators warn of court-packing if Roe is altered by Supreme Court

Washington D.C., May 24, 2021 / 13:20 pm

Democratic senators have argued that overturning or otherwise limiting Roe v. Wade would pave the way to change the size or structure of the high court, The Hill reported Monday.

The Supreme Court agreed last week to take up the case of Jackson Women’s Health Organization v. Dobbs, which concerns a Mississippi state law banning most abortions after 15 weeks of pregnancy. The court indicated it will consider one question in the case: “Whether all pre-viability prohibitions on elective abortions are unconstitutional?”

The legal question, as well as the court’s decision to take up the case, has prompted speculation that the justices could re-consider the 1973 Roe v. Wade ruling that legalized abortion nationwide. 

In Roe, justices ruled that states could not outright ban abortion before viability, but they could regulate abortion in the second trimester of pregnancy. In its 1992 Planned Parenthood v. Casey decision, the court ruled that states could also regulate abortion pre-viability, but they may not place an “undue burden” on women seeking to undergo an abortion.

Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee, told The Hill that if the court were to overturn or undercut Roe, it “will inevitably fuel and drive an effort to expand the Supreme Court if this activist majority betrays fundamental constitutional principles.”

“It’s already driving that movement,” Blumenthal added.

Pro-life groups, such as the Susan B. Anthony List, have warned that if a Democratic president were to add to the number of justices at the Supreme Court, the court could further enshrine its pro-abortion jurisprudence in future abortion cases. 

Tom McClusky, president of March for Life Action, told CNA in an email that the threat of court-packing “is blatant intimidation against sitting U.S. Supreme Court Justices and shows that when they don’t like the facts, they try to change the rules.” 

“A recent poll found that court-packing is deeply unpopular among Americans, with only 26% expressing support,” McClusky added, referencing an April Morning Consult poll that found Americans oppose adding additional justices to the high court by a nearly 2-to-1 margin.

McClusky argued that “Court-packing weakens judicial independence by only allowing judges to retain meaningful power if they rule how the majority party desires – in the Biden administration’s case, that means no limits on abortion at the taxpayer’s expense." 

In the report by The Hill, Blumenthal acknowledged that congressional Democrats would likely not be able to add justices to the court immediately. He said that any changes to Roe would fuel calls to alter the makeup or structure of the high court. 

“Chipping away at Roe v. Wade will precipitate a seismic movement to reform the Supreme Court,” Blumenthal said. “It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”

Sen. Sheldon Whitehouse (D-R.I.), another member of the Judiciary Committee, likewise told The Hill that the court’s review of the Mississippi law “really enlivens the concerns that we have about the extent to which right-wing billionaire money has influenced the makeup of the court and may even be pulling strings at the court.”

One conservative group, which is opposed to expanding the Supreme Court, has likened the argument for court-packing to intimidation. 

Carrie Severino, president of the Judicial Crisis Network, told CNA in an email that “Democratic politicians are bullying and intimidating the Court because they want the justices to carry water for liberal dark money groups.” 

“If they continue the shameless bullying and intimidation campaign they will destroy the rule of law and we will end up with a Court that is just a rubber stamp for liberal dark money priorities, not an independent judiciary,” Severino said.