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

Joe Biden
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.”

Written By

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."



  1. David

    May 10, 2022 at 10:09 am

    Unfortunately, I think the agenda is far more insidious. I think
    they want the conservative judges murdered so they can be replaced with liberal ones prior to the mid terms.

    • George

      May 15, 2022 at 11:46 am

      Sorry, it’s the right in this country that believes violence is a legitimate political tactic and murders activitis, judges, politicians, etc. The latest poll I saw showed that 40% of Republicans believe violence is an acceptable form of politic activity.

      A very cursory reading of US history will tell you that, my friend. It must be devistating when your bumpersticker beliefs confront the reality of data and facts!

  2. fjbrandon

    May 10, 2022 at 2:44 pm

    Dems, being who they are, will try to pack the Supreme Court if the sun comes up.

    • George

      May 15, 2022 at 1:54 pm

      Of course the Dems should pack the court in response to Republicans refusing to allow two rightful appointments, stealing seats and deligitmazing the entire institution for all time.

      If Dems were the actual extremists you and your simpleton friends on the right claim, we’d publicly call for the execution of the traitors Kavanaugh and god’s own handmaiden. But, that’s a trick from the Republican playbook, not the Democratic one.

      You want someone to blame, look in the mirror and at Mitch McConnell and the rest of the far-right extremists in the QOP.

    • George

      May 17, 2022 at 9:57 am

      Sure thing pal, how’s the “Great Replacement” theory Party doing these days, pushing that racist scum nonsense by folks like Elise Stefanik and others?

      The GOP finally got some more positive results for their strategy, 10 dead African-Americans in buffalo! I guess the white terrorism plan is going as they hoped. GOP, party of violent, idiotic terrorists who cosplay as “patriots” while defiling the constitution.

  3. TwentyYears

    May 10, 2022 at 5:42 pm

    Who gives a crap? They double it, we’ll quadruple it. Hell, let’s just go straight to 535 so every Rep and Sen can have one.

  4. Philip Litton

    May 10, 2022 at 7:12 pm

    Just wondering how the Dems are going to pack the court when their won’t be enough of them after the midterms! They better hurry up! Oh wait, they don’t have enough votes now!

  5. Richard Young

    May 10, 2022 at 7:32 pm

    Packing the Court is a Declaration of War!! Let the Civil War begin

  6. Fluffy Dog

    May 11, 2022 at 3:24 pm

    The real solution would be a constitutional amendment fixing the court size. But that is not likely to happen.

  7. George

    May 15, 2022 at 11:41 am

    It’s all irrelevant. The Supreme Court is no longer a legitimate institution after Mitch McConnell’s treasonous actions destroying the last shreds of non-partisanship.

    The Supreme Court is now owned and operated by the QOP, whoops, GOP. I understand their decisions will still be enforced at the barrel of a gun, for now anyways, but that doesn’t change the fact everything done by that court is illegitimate and driven solely by far-right wing politics.

    We will see states begin to ignore rulings until, unfortunately but eventually, the SC will be nothing more than a quaint memory. Great job Republicans, a minority of a minorty got their way!

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