Since Biden’s victory, it has become increasingly clear that in order to effect the change the country needs, Democrats must overcome the most powerful part of Trump’s legacy – his three Supreme Court appointments. The latest proof of this is the renewed discourse over Roe v Wade, the historic Supreme Court decision which guarantees women’s constitutional right to abortion. Thanks to a new case, the verdict in Roe v Wade may soon be overturned, jeopardising the future of abortion rights in America. This has led to renewed calls to “pack the court” – but what does this actually mean?
Understanding this issue requires understanding the role of the US Supreme Court, the highest court in the nation. Unlike the British court system, America’s Supreme Court has the ability to overturn Presidential decrees, otherwise known as executive orders, if they are deemed incompatible with law, and even overturn those laws if they themselves are deemed incompatible with the Constitution. All federal courts are also given the power to overturn executive orders if they deem them to go beyond the scope of the President’s authority. There are, at present, nine Justices, each of whom is nominated by the executive branch (i.e. the Presidency) and then confirmed by the Senate. The position is permanent, so once a Justice is confirmed, they cannot be removed, and they stay there until they either retire or die.
This process has recently become a pressing issue. The Court has always been a deeply political institution, with each party seeking to appoint Justices who follow their interpretation of the Constitution in order to maximise their impact. But in recent years, this has only worsened. Under Obama, the Republican-led Senate refused to confirm would-be Justice Merrick Garland, in order to preserve a conservative majority in the Supreme Court. Under the Trump administration, they then proceeded to appoint three young, right-wing Justices, the third of whom was appointed before her predecessor’s funeral and confirmed after Trump had already lost the election. It was, in effect, a nakedly partisan power grab. This power grab becomes more strikingly obvious when you take into account the fact that Senate Republicans would not confirm Garland to the court, as Obama nominated him after the election, but still confirmed Coney Barrett in the same circumstances.
This has naturally led to the question of whether Democrats should engage in a power grab of their own. The Supreme Court’s size is not mandated by the Constitution, only by law. Theoretically, expanding it is an easy task, and the addition of two Justices would tip it back in the Democrats’ favour. But the idea has also faced immense Democratic opposition, particularly from the party’s right wing, and from President Biden himself. The technical barriers are few, but the practical barriers are immense.
Yet it may be necessary to overcome those barriers.
Recently, the state of Mississippi passed a bill that would prohibit almost all abortions after 15 weeks of pregnancy and the state of Texas is implementing a law that prevents abortions in all instances after six weeks. This directly contravenes a long body of established precedent, built up since the decision of Roe v Wade itself, which guarantees a woman’s right to abortion until at least the pregnancy is viable. The resultant lawsuit has been brought through the American court system, and now makes its way to the Supreme Court, where if the law is upheld (which is very possible, thanks to the new Justices) it will itself overturn the past precedent. Without a guaranteed threshold for legal abortions, states may once again be free to ban abortions entirely.
There are significant hurdles. First, there is no guarantee that a move to pack the Court would make it through Congress. The Democrats have a slim majority in both the House and the Senate, which could easily swing against a bill to expand the court. Worse, any opposition could easily filibuster the bill, prolonging the debate with filler speeches to forestall the passage of legislation. Therefore, successfully expanding the Supreme Court would require use of the so-called “nuclear option” – a change to Senate rules by simple majority, forcing an end to the filibuster. This, in and of itself, would be controversial, and the conservative Democratic Senator for West Virginia, Joe Manchin, has expressed his disapproval of such a plan. Even if Manchin could be recruited for the change, he would still pose a threat to the expansion itself.
There is also a longer-term threat against the idea. At the moment, voters still trust the Supreme Court. Though it is a fundamentally political instrument, this move would likely be seen as far more egregious than anything the Republicans have done so far. In turn, this risks losing the next round of elections for Democrats, hamstringing their legislative agenda – and letting the Republicans do the exact same to them. If a court-packing attempt is to work, the Biden administration must convince Americans that it is necessary, and that will not be easy. Perhaps the Supreme Court needs to be packed. For the time being, Democrats can codify Roe v Wade as federal law, preventing the Supreme Court from acting on it in this case. But the incredibly partisan nature of the current Court will undermine Democrat law-making, and bolster Republicans when and where they are in power. The three judges appointed by Trump are young and healthy; they will not retire, and in the long run, they give the Republicans a major advantage. If Biden wants to defeat them, he needs to first convince Americans that the extra Justices are a necessary and justified action, and then also convince them that any more after that would be an insane and cynical power-grab. For a President who built a lot of his platform on norms and decency, this will be difficult.