Whether it’s gay marriage or upholding Obamacare, Democrats have long celebrated the Supreme Court when its rulings go their way. But, in the aftermath of the court’s decision overturning Roe v. Wade, some top Democrats like Elizabeth Warren are essentially calling to destroy the high court as we know it.
Mad about abortion, Warren just renewed her call to “pack” the Supreme Court with additional justices to skew its balance back in the Democrats’ favor.
“This court has lost legitimacy,” she said in a Sunday ABC News interview. “I believe we need to get some confidence back in our Court, and that means we need more justices on the United States Supreme Court.”
"I believe we need to get some confidence back in our Court, and that means we need more justices on the United States Supreme Court."
— Sen. Elizabeth Warren (D-MA) on expanding the Supreme Court pic.twitter.com/piej4dGJ1J
— The Recount (@therecount) June 27, 2022
This plan, known as “court-packing,” is supported by many other prominent elected Democrats. It is technically constitutional, as the Constitution does not specify how many justices must sit on the Supreme Court.
However, we’ve had nine justices since 1869. So, court-packing would be ripping up the rulebook to rig the nation’s highest court for partisan advantage.
It would also prompt a vicious cycle where the next time the GOP takes power, they expand the court again in response, then vice versa. Before you know it, we would have a 1,000 member Supreme Court with zero legitimacy or credibility—losing a vital institution that serves a key role in our system of checks and balances.
You don’t have to take my word for it.
“If the Democrats pack the court, the GOP will respond in kind, as soon as they get the chance,” George Mason University law professor Ilya Somin has written. “The predictable result will not only be a loss of ‘credibility’ for the Supreme Court, but also the elimination of judicial review as an effective check on the other branches of government.”
“If the president can pack the court any time his or her party controls both houses of Congress, they can prevent the court from making decisions that curb unconstitutional policies they may wish to enact,” Somin continues. “It is no accident that court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela.”
While Democrats like Warren may be caught up in the moment with their outrage over Roe, they would almost certainly live to regret this dangerous escalation.
In the past, when they’ve destroyed a norm for short-term political gain, it has then gone on to backfire.
For example, the Supreme Court itself only has its current members because in 2013, Democrats under Harry Reid’s leadership decided to remove the filibuster for lower judicial nominees, allowing them to be confirmed with a raw majority rather than needing two-thirds support in the Senate.
A few years later, Republicans responded in kind by removing the filibuster for Supreme Court nominees, allowing Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to be confirmed to the high court. If the judicial filibuster remained intact, more moderate justices would probably have had to have been nominated. They might not have then overturned Roe, a fact that reveals just how short-sighted Democrats under Reid truly were.
In the same way, if Democrats blow up the Supreme Court as an institution because they’re mad about the end of Roe v Wade, they’ll soon regret it. Just remember how often the high court served as a check on former President Trump, striking down many of his actions when they crossed constitutional boundaries.
Nobody’s saying the Supreme Court is perfect. It wields far too much power over our society, for sure. But that’s more of a reflection of how out-of-control the size of the government has become and how much of their duty our elected lawmakers have abandoned, leaving it up to the courts to fill in the gaps.
And despite its imperfections, the Supreme Court is still vital to our constitutional order and our freedom.
Democrats will want an intact, independent, credible Supreme Court the next time we have a Republican president. And the entire nation is better served when we have more checks and balances, not fewer.
So, is it really too much to ask that Elizabeth Warren and her allies show even a little bit of foresight?
If progressives successfully (metaphorically) burn down the institution of the Supreme Court in a temper tantrum over one ruling they dislike, we’ll all live to regret it.