Court-Packing Bill Intimidation Tactic against Sitting Justices

(Jonathan Ernst/Reuters)

The bill doesn’t have the votes to pass Congress now, but will Democrats successfully pressure the Supreme Court to avoid rulings that enrage progressives?

In October 2020, shortly before the confirmation of Justice Amy Coney Barrett to the U.S. Supreme Court, a Siena/New York Times survey asked likely voters: “If Amy Coney Barrett is confirmed to the Supreme Court and Joe Biden is elected president, do you think that Democrats should or should not increase the size of the Supreme Court to include more than nine justices?”

By a two-to-one margin — 58 percent to 31 percent — voters said they were opposed to Court-packing.

If a strong majority of Americans oppose Court-packing — and a Court-packing bill doesn’t have votes to pass Congress — why did congressional Democrats go ahead anyway on Thursday and introduce a bill to increase the number of justices on the Supreme Court from nine to 13?

There are a few reasons.

One is that the issue matters to the activist progressive base. Ed Markey of Massachusetts, the bill’s chief sponsor in the Senate, survived a primary challenge in 2020 and is firmly committed to doing whatever it takes to make the Left happy — even if it isn’t good politics for the Democratic Party in 2022 or 2024.

A second reason for introducing the bill, of course, is that many Democrats are deadly serious about blowing up the Supreme Court if they ever think they really need to do it — and introducing a bill now is a necessary first step to get there. As Brian Fallon of Demand Justice, a left-wing judicial activist group, tweeted: “Even the sponsors would agree it doesnt have the votes yet. The point in introducing the bill is to build support for it, a project that will only be aided by bad rulings from this 6–3 Court.” Dan McLaughlin notes that congressional Democrats could be a couple of Senate seats away from having the votes to abolish the filibuster, which would be a prerequisite to packing the courts.

But the third and perhaps most significant reason that Democrats introduced their Court-packing bill is to intimidate the Supreme Court in such a way that Democrats never really feel they need to pull the trigger on Court-packing.

Senate minority leader Mitch McConnell argued in a floor speech that the bill is all part of an ongoing effort to intimidate Supreme Court justices. He said on Thursday that with the Court-packing bill, the “Left wants a sword dangling over the justices when they weigh the facts in every case.”

“Just like the last time the Democrats tried packing the Supreme Court, this scheme is meant to intimidate the justices into making liberal rulings,” Arkansas senator Tom Cotton wrote on Twitter.

Roll Call reports that some congressional Democrats came very close to explicitly agreeing with that argument.

“The Court needs to know that the people are watching,” Democratic congressman Hank Johnson of Georgia, a co-sponsor of the Court-packing bill, said at a press conference on Thursday. House Nancy Pelosi said she was taking a wait-and-see approach and has no intentions right now of bringing the bill to the floor. But as the bill’s lead sponsor in the House, Judiciary Committee chairman Jerrold Nadler, said on Thursday: “I believe that as events unfold, as the Court comes down with decisions destructive to a woman’s right to choose, as they come down with decisions destructive to the climate, as they come down with decisions destructive of civil liberties, I believe that the speaker and others will come along.”

“The threats are the point,” McConnell said Thursday. “The hostage-taking is the point.”

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