In response to the drive to confirm President Trump’s Supreme Court nominee, some Democrats are threatening to pack the Supreme Court if (1) the drive succeeds and (2) the Dems win the White House and take control of the Senate. Of course, talk of packing the Court did not begin with Justice Ginsburg’s death and the GOP’s decision to proceed with confirming a replacement during an election year. Some liberals were already advocating the idea.
How seriously should we take the Democrats’ current threat to pack the Supreme Court? I think we should take the threat quite seriously. I would not be surprised to see the Democrats, under pressure from the hardcore left, make a run at packing the court if the two conditions cited in my first paragraph come to pass.
However, it may be that to accomplish court packing, the Dems will need to win control of the Senate by more than a narrow margin. If the Senate is divided 50-50 with Kamala Harris as the potential tie-breaker, or if the Dems hold 51 or 52 seats, court packing legislation may not command enough votes.
I don’t see Joe Manchin backing it. I question whether Kyrsten Sinema and newly elected Senators such as John Hickenlooper, Mark Kelly, and Cal Cunningham — the ones who, in this scenario, give the Dems their majority — would back it either.
It probably depends on the polls. If the public is okay with packing the court, there’s a good chance all Democratic Senators other than Manchin will go along with the idea. But court packing is not likely to have popular support. If it doesn’t, I question whether enough Senators from non-blue states will vote in favor.
Democratic Senators should also consider the non-electoral consequences of packing the Supreme Court. The big consequence, I think, would be that state officials and future Republican presidents would no longer consider themselves bound by rulings of a Supreme Court with more than nine members. They would view a packed Supreme Court as illegitimate.
In addition, I believe they would no longer consider themselves bound by new decisions by courts of appeals. After all, a packed Supreme Court would preclude appeal of such decisions to a court they view as legitimate.
Decisions by the old, nine-member Supreme Court might be in jeopardy too, on the similar theory that they can no longer be revisited by a properly constituted body. I’m thinking, in particular, of Roe v. Wade.
I doubt that Democratic Senators would weigh these likely consequences in deciding whether to pack the Supreme Court. But maybe they should.