WASHINGTON — Emily Blocher remembers the response she received from an aide to Democratic Rep. Adam Schiff when, last fall, she traveled to Washington to advocate for expanding the size of the Supreme Court: It was warm and attentive, she said, but conspicuously non-committal to the proposal.
The 31-year-old Los Angeles resident has reason to think she’d be more persuasive now — not least because the California congressman has subsequently embraced a bill to add justices to the nation’s high court after news leaked that a majority of justices intended to strike down the landmark Roe v. Wade ruling that guaranteed the right to an abortion.
“I really, really, really hope that this becomes way more of an issue during everyone’s re-election for office,” said Blocher, a volunteer for the progressive group Demand Justice, which focuses on the judiciary. “I really hope this is at the forefront of everyone’s mind.”
Advocates like Blocher are hopeful that they can renew their once-stalled push to bring Supreme Court expansion into the mainstream of the Democratic Party, channeling the outrage over the court’s apparent impending Roe decision — and other cases waiting to be adjudicated by the nation’s highest court — into tangible support.
Even if the effort failed to break through in previous years, they say the pressure Democratic voters bring to bear on lawmakers will be like nothing they’ve felt before.
“It will increasingly become untenable for Democratic members of Congress to not support court expansion when Democratic voters are clamoring for that,” said Rep. Mondaire Jones, a Democrat from New York who has introduced legislation known as the Judiciary Act that would expand the size of the court by four seats, from the current nine justices to 13 members.
The push from Jones and other advocates to expand the court, something that hasn’t been done since the aftermath of the Civil War in 1869, faces a series of stiff challenges. President Joe Biden, for one, has resisted attempts to back expansion even after coming under pressure to do so during the 2020 presidential campaign. Democrats were angry about the state of the court after Republicans voted to confirm Justice Amy Coney Barrett just weeks before Election Day that year despite blocking Merrick Garland from confirmation four years earlier, citing the proximity of the next election.
A commission created by the president last year to assess the Supreme Court failed to recommend court expansion, disappointing supporters of the proposal, and it gradually lost attention even among activists amid drawn-out debates over the legislative filibuster in the Senate.
Even if the proposal does gain momentum among most Democratic lawmakers, it’s highly unlikely to receive the near-unanimous support necessary to pass through the House or Senate this year, especially from more centrist lawmakers like Democratic Sen. Joe Manchin of West Virginia.
And any sustained push from Democrats to expand the court is likely to become a political target for Republicans, who label the proposal “court packing” and say it’s proof of the party’s ever-increasing extremism.
Building pressure
But advocates argue that they are committed to playing a long game, one designed to gradually sway Democratic opinion until it becomes politically untenable for Democratic lawmakers to oppose the policy.
It’s an effort modeled after the bid to convince Democratic senators to get rid of the filibuster. Once a fringe proposal in the party, the position is now adopted by the vast majority of members, even if some notable holdouts remain.
“Our goal is that two years from now, that having a very clear position in favor of Supreme Court reform would be another consensus issue for Democratic candidates,” said Brian Fallon, executive director of Demand Justice, a progressive group spearheading efforts to expand the size of the Supreme Court.
Already, there are some signs the Supreme Court’s Roe decision — expected to land in the coming weeks — will re-energize their efforts. Jones said the leak of the court’s early draft opinion saw a significant number of Democratic members reach out to him about it, indicating their interest in signing on to his bill expanding the court.
The League of Conservation Voters, meanwhile, issued a statement last week signaling their support for the legislation, a strong sign that the party’s environmentally-focused faction was on board with it.
Democrats speculate that the formal issuance of the court’s Roe decision could spur even more groups to back it. In a statement, NARAL Pro-Choice American President Mini Timmaraju did not embrace expansion but said “this moment requires bold action to protect our fundamental rights.”
“The damage wreaked on our federal judiciary and democracy by Donald Trump and Senate Republicans won’t be easily undone, and we need all of our options on the table for solutions to address the crises we face,” Timmaraju said.
In addition to Roe, Democrats say they are bracing for policy setbacks on issues ranging from climate change to gun control from the court this summer. To activists like Fallon, the collective fallout of those decisions should make clear to lawmakers and voters alike that the party can’t respond simply with policy legislation alone, because in their view, the court’s conservative majority will also strike down those laws.
It’ll necessitate further-reaching reforms, he said.
“We don’t think that’s sufficient,” Fallon said. “We want them to not just promise to act on the Women’s Health Protection Act if they grow their ranks in the fall elections. We want them to promise to do something about the court itself.”
