From nuking the filibuster to packing the Supreme Court, some Democrats want to make the most of their narrow congressional majorities while they still have them — even if that puts the party at greater risk of losing next year.
Democrats introduced legislation on Thursday to expand the number of Supreme Court justices from nine, which is where it has been for 150 years, to 13. “We’re not packing the court,” said House Judiciary Committee Chairman Jerry Nadler, a New York Democrat. “We’re unpacking it.”
As the bill was unveiled, the Democratic majority in the House was down to just six seats. The Senate is deadlocked at 50-50, with Democrats in control due to Vice President Kamala Harris’s tiebreaking vote. Midterm elections are next year, and their party suffered major losses under previous Democratic presidents in 1994, 2010, and 2014.
THE GOP ESTABLISHMENT STRIKES BACK
Liberals would like to see Democrats go for broke, passing the boldest progressive agenda they can muster while they still maintain unified control of the elected branches of the federal government. The court legislation would allow them to add the judiciary to the list. They point out that popular vote losses in close elections did not deter Republicans from pursuing their goals under former Presidents Donald Trump and George W. Bush.
“They will burn down their majorities in order to save them,” warned a top conservative operative.
That doesn’t extend to every leading Democrat. President Joe Biden punted the size of the Supreme Court to a commission, and White House press secretary Jen Psaki told reporters on Thursday, “He certainly understands that members of Congress have a range of views, and they’re going to propose legislation. He may or may not support it.”
House Speaker Nancy Pelosi was less equivocal. “No,” the California Democrat told reporters when asked about Nadler’s bill. “I have no plans to bring it to the floor.”
But liberals point to the last time Pelosi was speaker, when Biden was vice president. Democrats may have lost their House majority after passing Obamacare. But it was the biggest legislative accomplishment those Obama-era majorities achieved, Republicans failed to repeal it when they had the chance in 2017, and it brought about lasting change.
Republicans were willing to end the filibuster of Supreme Court nominees to confirm Justice Neil Gorsuch after failing to hold a hearing for Obama nominee Merrick Garland. They risked electoral backlash in confirming Justice Brett Kavanaugh ahead of the 2018 midterm elections, though that nomination fight appeared to boost GOP Senate candidates in red states. And they confirmed Justice Amy Coney Barrett in a presidential election year, even with Trump trailing in the polls.
The resulting 6-3 conservative majority on the Supreme Court, padded with what left-wing activists consider “stolen” seats, is the main reason liberals want to add justices now. But Democrats running in competitive Senate races last year were often noncommittal or opposed to court-packing. A Washington Examiner/YouGov poll found that packing the court to make it more liberal was unpopular with voters. Biden did not take a firm position on the issue in his race against Trump.
“I don’t think this plan has any chance of passing, at least not in the current Congress,” said Republican strategist Alex Conant. “I think this is some liberal members trying to give their base some red meat, but it’s not a serious proposal unless Biden and Pelosi throw their full support behind it.”
But Biden and Pelosi have embraced expansive definitions of infrastructure and COVID relief in an effort to pass multiple multi-trillion spending bills they hope will be economically transformative. Biden has huddled with historians at the White House to discuss how Democratic giants Franklin Roosevelt and Lyndon Johnson became such consequential presidents. Democratic bills overhauling elections and immigration are highly ambitious.
A leading Democratic data scientist said, in a widely circulated interview about last year’s election, that sweeping changes are necessary to improve their chances of winning the next one. “In terms of putting numbers on things, I think that if we implemented D.C. and Puerto Rican statehood and passed redistricting reform, that would roughly triple our chance of holding the House in 2022 and roughly the same in the Senate,” David Shor told New York Magazine. “The fact that it’s possible to triple those odds is a testament to how bleak the baseline case is. So we need to pass those reforms, and we need Biden to remain popular.”
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Republicans are skeptical Biden can remain popular and pursue such a liberal agenda at the same time. They and their allies plan to test that theory over the next year.
“When pro-abortion Democrats experience losses, they dismantle sustaining American institutions rather than work within them, in the ingenious way the Founders provided,” Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, said in a statement. “There is no rule they won’t violate or rewrite in their drive to impose their abortion agenda before the 2022 midterm elections, no matter the collateral damage to our nation.”
