The proposal to reform the Supreme Court has received renewed attention from Democrats following the leak of Judge Samuel Alito’s draft opinion that would overturn Roe v. Wade, one of the most important civil rights decisions of the last 50 years.
Democrats say the opinion, if supported by five conservative judges, opens the door to reversing other key court decisions about same-sex marriage or the right to use contraception.
The most audacious reform proposal is to add more judges to the courts to equalize the 6-3 ratio of Republican and Democratic-appointed judges.
Supporters of the court expansion say the decision to drop Roe v. Wade will provide new political momentum for the court’s expansion, and Democratic leaders aren’t ruling it out, even though the proposal currently has few co-sponsors and not enough support for Congress to pass.
“Alito’s draft decision and the examples of what we’ve seen this week in my opinion further dramatize the partiality of this court. The reason for expanding the courts, for adding judges to the courts, which I support, is that this would be necessary to bring the balance back to the courts. I think it’s even clearer to more people now,” Sen said. Tina Smith (Minn.), one of three Democratic backers of legislation to expand the court from nine to 13 judges.
The House companion bill has 50 co-sponsors, a sign of its popularity with a Democratic base.
While Smith acknowledged that the court expansion bill won’t move in the Senate 50-50, he expects it to be discussed in future Congresses with a larger Democratic majority.
“Of course, to achieve such a thing we have to get a vote in the Senate and that again pushes us on the importance of this upcoming election,” he said.
Senate Majority Leader Charles Schumer (D-N.Y.) told reporters his immediate focus will be on bringing the bill to the floor next week to draft the right to abortion set out by Roe v. Wade. The law is also expected to fail, as it will require 60 votes to address the filibuster.
Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) voted against a similar bill in February and indicated they were unlikely to vote for the revised version because they feared the bill would not provide sufficient protection for healthcare providers who do not want to have an abortion.
Schumer argues, however, that Alito’s leaked opinion has shaken the political landscape in a big way. “It’s a different world now. Our political tectonic plate about women’s choice and rights in general is changing,” she said.
“This court has shown such carelessness in adhering to precedent that we are concerned that another precedent will be overturned,” he said. “We are very concerned about what has happened… sadly, this is the direction the courts want to go in too many other places.”
Asked specifically about the court’s expansion, Schumer pointed to the upcoming midterm elections as an important factor in shaping his future: “The bottom line is that we’re going to see this election in November, and I think the American people will talk loud and clear that we need some change.”
“We can’t have a right-wing court running America. How it changes, we’ll see,” he added.
Senate Judiciary Committee chairman Dick Durbin (D-Ill.) also said the right to use contraception, marry someone of the same sex and “the basic question of protecting the LGBTQ population” were “all at stake.”
Durbin said it was “too early to comment” on what the proposal to add more judges to the court would mean if the current five-seat conservative majority followed Alito’s draft opinion and dropped Roe v. Wade.
“You know the legislative process,” he said, noting that legislation to expand the court would require 60 votes to pass under current Senate rules. “It takes more than a simple majority. It’s impossible under the current circumstances but unlikely if we increase our majority in November.”
Republicans led by Senate Minority Leader Mitch McConnell (R-Ky.) meanwhile argue that calls to expand the Supreme Court or reform it in other ways are attempts to weaken the institution.
He accused the person who leaked Alito’s draft opinion of trying to discredit the court’s credibility with the American people.
“I think today’s story is an attempt by someone inside to discredit the [Supreme Court] institution, which continues a pattern we have observed over the last few years,” he said.
Central Senators Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) reaffirmed their support for the Senate filibuster rule after Alito’s draft opinion leaked Monday night.
And other center Democrats say they don’t support court expansion
“I’m against that,” Senator Jon Tester (D-Mont.) told reporters.
There have also been other proposals, such as placing a limit on the term of office of judges, imposing a code of ethics in the Supreme Court, setting a standard of refusal, requiring judges to report travel and hospitality gifts, and barring judges from attending political events.
The Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights holds hearings Tuesday on judicial ethics, transparency and accountability with a focus on the Supreme Court, and the House committee plans to consider companion legislation next week.
“This clearly provides an opportunity for court reform talks. We’re having hearings on my bill this week, and the House is marking the bill next week,” said Senator Sheldon Whitehouse (D-R.I.), who chairs the subcommittee.
Senator Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee, predicted every decision that brought down Roe v. Wade will spark new calls for judicial reform.
“I think there will be increased support for reform of the Supreme Court, maybe not expanding the court but limiting the age, the number of years in office,” he said. “Support for such measures reflects the Supreme Court’s squandering of its legitimacy and credibility.
“When I was the clerk of the Supreme Court, I would laugh at the idea of changing anything about the Supreme Court and I would also say that the American people wouldn’t even accept the idea, and now people are starting to think of the Supreme Court as another branch of politics, like the Senate,” he said.
“That is the function of the Supreme Court to politicize itself,” he added, referring to the reversal that loomed over Roe v. Wade.
Senator Jeanne Shaheen (D-N.H.), whose compatriot Senator Maggie Hassan (D) is in stiff competition, said she opposed expanding the court. But he is open to pressuring the Supreme Court to adopt a stricter code of conduct.
“I continue to believe that we need to encourage courts to look at their own ethical issues,” he said.
A political storm erupted in March when it was revealed that Judge Clarence Thomas’ wife, Ginni Thomas, urged Trump’s former White House chief of staff Mark Meadows to reject the 2020 election results.
Democrats including Senators Ron Wyden (Ore.) and Jeff Merkley (Ore.) called on Thomas to step down from any case related to the January 6, 2021, attacks on the US Capitol.