Democrats are vowing that should the U.S. Supreme Court alter the legal precedent on abortion it will add to the push within their party to add seats to the nation’s highest court. Democrats issued the warning after the Supreme Court announced that it would hear a case on the constitutionality of Mississippi’s 15-week abortion ban. The state of Mississippi is asking the court to review a lower court decision finding that the ban on abortions more than 15 weeks into a pregnancy is unconstitutional. Democrats fear that with the court consisting of six justices appointed by Republican presidents and three justices appointed by Democratic presidents, the justices could uphold the pro-life state law, thereby striking a blow to the longstanding Supreme Court precedent in Roe v. Wade establishing the right to obtain an abortion nationwide.
Democrat Senators Richard Blumenthal and Sheldon Whitehouse, are among the lawmakers promising to push for changes to the Supreme Court if the court decision is overturned. “It will inevitably drive an effort to expand the Supreme Court if this activist majority betrays fundamental constitutional principles,” Blumenthal said. Calls for adding more justices to the Supreme Court, have grown considerably since the confirmation of Amy Barrett to the Supreme Court shortly before the 2020 presidential election. Barrett’s confirmation caused outrage because she replaced the late Justice Ruth Bader Ginsburg, a figure beloved by progressives. Democrats have accused Republicans of hypocrisy because they blocked the confirmation of Merrick Garland, who then-President Barack Obama nominated to the Supreme Court in 2016, his final year in office.
At the time, Republicans argued that because it was a presidential election year, voters should have the opportunity to decide who (between candidates Hillary Clinton and Donald Trump) they wanted to pick the next Supreme Court justice. In 2020, Democrats maintained that Republicans did not give voters the same opportunity. Last month, Democrats introduced a bill to increase the number of justices on the Supreme Court from nine to 13. If passed, the legislation would nullify the effect of the nominally 6-3 conservative majority by giving President Joe Biden the opportunity to appoint four new justices to the bench. However, the legislative effort to increase the size of the Supreme Court has gained little traction, as House Speaker Nancy Pelosi, has said that she will not bring the legislation up for a vote.
A poll conducted on behalf of the religious liberty law firm First Liberty Institute, found that 68% of Americans opposed the addition of justices to the Supreme Court compared to 27% who supported the idea. While the American people as a whole gave the proposal a cool reception, Democrats were split on the idea, with 50% expressing support for it. When asked about the specific legislation introduced by Democrats to add four seats to the Supreme Court, 65% of respondents opposed the bill while 31% supported it. A majority of Democrats (63%) indicated their support for the proposal, while the majority of Republicans (95%) expressed disapproval. Although some progressives have embraced court-packing, some liberals, including the late Ginsburg herself, have expressed hesitancy to go down that path.
In 2019, Ginsburg weighed in on the push to add justices to the Supreme Court. “If anything would make the court appear partisan it would be that,” she asserted. Stephen Breyer, the longest-serving liberal justice on the court, echoed her concerns. He warned about the implications of court-packing urging “those who favour structural change or other institutional changes such as court-stacking to think long and hard before they embody those changes in law.” Stressing the need to preserve the court’s reputation as “guided by legal principle, not politics,” Breyer emphasized that “structural change motivated by the perception of political influence can only feed that latter perception, further eroding trust.”
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