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Will Democrats Try to Pack the Supreme Court if Roe v. Wade is Overturned?

President Joe Biden delivers remarks on the situation in Afghanistan, Monday, August 16, 2021 in the East Room of the White House. (Official White House Photo by Adam Schultz)
President Joe Biden delivers remarks on the situation in Afghanistan, Monday, August 16, 2021 in the East Room of the White House. (Official White House Photo by Adam Schultz)

So it’s back. In the name of freedom—“reproductive freedom” in this case—Democratic politicians are calling for a new form of tyranny. 

The leaked opinion to overturn Roe v. Wade sparked more demands to pack the Supreme Court with enough justices to reverse the decision again. The idea had some support from congressional Democrats last year who were angry that Amy Coney Barrett was replacing their liberal icon, Ruth Bader Ginsburg. 

Sen. Ed Markey, D-Mass., sponsored legislation to pack the courts. But President Joe Biden—who had called it a “boneheaded idea” when he was a senator—did what you do in Washington when you want to punt on an issue. Appoint a commission to study it. The Presidential Commission on the Supreme Court released a report in December and did not recommend court-packing. It actually didn’t recommend a lot of anything but offered an analysis of ideas that were already floating. 

“A stolen, illegitimate, and far-right Supreme Court majority appears set to destroy the right to abortion, an essential right which protects the health, safety, and freedom of millions of Americans. There is no other recourse. We must expand the court,” Markey tweeted

Rep. Adam Schiff, D-Calif., hyperbolically tweeted, “Codifying Roe isn’t enough. We must expand the court.”

Interestingly, a plurality of the public—45%—supports expanding the court in the wake of the leak about Justice Samuel Alito’s draft majority opinion in the Dobbs v. Jackson Women’s Health Organization, while 36% object to court-packing, according to a Politico/Morning Consult poll. 

It’s highly unlikely the plurality backing court-packing has thought this through. Notably, more than 60% back either age limits or term limits for justices, according to the same poll. But these changes, which might be worth considering, would require a constitutional amendment. Unfortunately, the most threatening proposal to the constitutional republic is the easiest change to make. Such a proposal hasn’t been fully debated and is largely the realm of activists and eggheads. But it has a history of failing to gain popular support even with a popular leader behind it. 

Franklin D. Roosevelt’s failed effort at packing the Supreme Court with like-minded friends has for decades been recognized even among the most progressive Democrats as an unseemly power grab and a black mark on his presidency. Apparently not anymore. 

A bigger point is that FDR had huge majorities in Congress, won two landslides by this point, and couldn’t push this change. Biden won a relatively close election and the Senate is split 50-50 , with only a functional majority from Vice President Kamala Harris ability to cast a tie-breaking vote. Roosevelt, like supporters of expanding the high court today, was angry about outcomes as justices kept striking down New Deal policies. 

Though a failed legislative effort, the high court began to be more compliant at the prospect of a power-hungry president blowing up the judiciary and began upholding New Deal programs. That might be the goal of congressional Democrats now. As radical activists march through the front yards of the homes of justices, Democrats in Congress could simply have found a separate intimidation tactic through legislation. 

Even an idle threat is short-sighted thinking. 

Markey might well claim his legislation would be narrow enough to not get so out of hand. He just needs enough justices to reverse all the bad decisions from Republican-appointed justices. That’s all. 

That’s quite delusional if he thinks Republicans would not reciprocate, and when given the opportunity begin adding their own justices to reverse the bad decision Democrat-appointed justices have done. It’s a little frightening to imagine how many justices the Supreme Court might eventually have under such a scenario.

Next to the ability to elect leaders, separation of powers is the most important element of a constitutional republic. No, the Constitution doesn’t specify there will be nine justices. But if it became a given that every time a party controls Congress and the White House, it would add just enough justices to obtain favorable outcomes, then the entire point of an independent judiciary would be gone. Under such a bizarre structure, the Constitution could change every four to eight years, and the United States would be a banana republic.   

Voting alone can’t maintain a free republic. Separation of powers prevents a tyranny of the majority—even if it’s a fleeting tyranny that will eventually see-saw back to another majority. 

Fred Lucas is chief national affairs correspondent for The Daily Signal and the author of “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump.”

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Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of "The Right Side of History" podcast. Lucas is also the author of "Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump."