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When Republican appointed justices on the U.S. Supreme Court expressed a willingness to overturn Roe v. Wade earlier this month, it had a meaningful effect on Democratic lawmakers. The Washington Post reported two weeks ago that the oral arguments "accelerated an urgency among Senate Democrats to fundamentally alter how the court operates."
Those attitudes, of course, were fueled in part by Democratic resentment over Republican abuses that created a dominant far-right majority on the high court.
The article added that on Capitol Hill, "a growing faction, long hesitant to embrace structural changes, say they are now prepared to consider such moves."
It was against this backdrop that Democratic Sen. Elizabeth Warren of Massachusetts wrote a Boston Globe op-ed endorsing expansion of the Supreme Court. From her piece:
For years, the Supreme Court's conservative majority — recently supercharged to 6-3 — has issued decision after decision that veers away from both basic principles of law and widely held public opinion. With each move, the court shows why it's important to restore America's faith in an independent judiciary committed to the rule of law. To do that, I believe it's time for Congress to yet again use its constitutional authority to expand the number of justices on the Supreme Court. I don't come to this conclusion lightly or because I disagree with a particular decision; I come to this conclusion because I believe the current court threatens the democratic foundations of our nation.
Anticipating the usual counter-arguments, the senator made a compelling case that it's Republicans who've already "hijacked" and "packed" the Supreme Court, leaving Democrats with little choice to expand the court in order to help restore its legitimacy and independence.
Warren isn't alone on this, but it would be an exaggeration to say she has a lot of legislative allies. It was in April when House Judiciary Committee Chairman Jerry Nadler of New York and Rep. Hank Johnson of Georgia first unveiled a bill to expand the size of the Supreme Court from 9 justices to 13. The measure has 45 co-sponsors — including five who've signed on after oral arguments in Dobbs v. Jackson Women's Health Organization — which isn't bad, but which also isn't enough to get rushed onto the House floor.
In the Senate, support is even more tepid. Democratic Sen. Ed Markey of Massachusetts unveiled a companion measure in April, and at the time, he had literally zero co-sponsors. Several months later, Democratic Sen. Tina Smith of Minnesota backed the same bill, and now Warren appears to be on board.
Three proponents in a 100-member body isn't much, and it's certainly not the kind of total that will help an inevitable Republican filibuster. (Markey, for what it's worth, has said the Senate should abolish the filibuster to ensure that Congress can expand the court.)
Circling back to our earlier coverage, provocative legislation is sometimes worthwhile, regardless of its legislative prospects, because of the way in which it advances a larger conversation. This specific bill to expand the Supreme Court to 13 seats faces long odds in this Congress, but given the ridiculousness of Republican abuses, and the lasting consequences of the GOP's judicial initiative, there's value in keeping a reform debate going.
The fear, however, is that by the time court expansion becomes a more mainstream idea, it'll be too late.