Sen. Tom Cotton (R-Ark.) accused Democrats of blackmail for threatening to pack the Supreme Court if it upholds a pro-life Mississippi law.
The Arkansas Republican’s single-word tweet consisting of the word “blackmail” came in response to an article in The Hill newspaper that quoted four Democratic U.S. senators vowing to expand the size of the nation’s highest court in order to protect abortion rights, should the court decide to uphold Mississippi’s H.B. 1510, the Gestational Age Act of 2018, which prohibits abortions after 15 weeks’ gestational age except in medical emergencies or for severe fetal abnormality.
Sen. Steve Daines (R-Mont.), also weighed in on the article and its contents.
“Not surprised. Called it,” Daines tweeted.
The Supreme Court decided May 17 to hear Dobbs v. Jackson Women’s Health Organization, court file 19-1392. The court will consider only Question 1 in the petition for certiorari, which is “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
It’s the first case dealing directly with the constitutionality of abortions that the high court has decided to take up since Justice Amy Coney Barrett’s arrival on the bench last fall gave the conservative bloc a 6–3 majority on the court, giving pro-life activists hope.
The case will probably be heard in the fall of this year and a decision rendered before summer 2022. It comes as Democrats and President Joe Biden intensify their push to expand the Supreme Court from its current nine members, in part to protect abortion rights.
In theory, the Supreme Court could overturn Roe v. Wade, the 1973 ruling that made abortion lawful throughout the United States, but court watchers say narrowing its reach seems more likely.
The court could also take aim at the splintered Planned Parenthood v. Casey (1992) decision, a plurality opinion that held that states can’t impose significant restrictions on abortion before a fetus becomes viable for life outside the womb. The Casey ruling didn’t specify when viability occurs but suggested it was at about the 23-week or 24-week gestation mark, as opposed to the 28-week mark assumed by Roe v. Wade.
Senate Judiciary Committee member Richard Blumenthal (D-Conn.) told The Hill the plan to pack the court will receive a boost if the Supreme Court makes getting abortions more difficult.
“It will inevitably fuel and drive an effort to expand the Supreme Court if this activist majority betrays fundamental constitutional principles,” Blumenthal said. “It’s already driving that movement.”
“Chipping away at Roe v. Wade will precipitate a seismic movement to reform the Supreme Court,” he said. “It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain number of votes to strike down certain past precedents.”
Another Judiciary Committee member, Sen. Sheldon Whitehouse (D-R.I.), accused the court, without evidence, of being captive to wealthy conservatives.
“It really enlivens the concerns that we have about the extent to which right-wing billionaire money has influenced the makeup of the court and may even be pulling strings at the court,” he told The Hill.
“We’ve got a whole array of options we’re looking at in the courts committee,” he said, apparently referring to the Presidential Commission on the Supreme Court of the United States, which President Biden created by executive order.
Even if there were insufficient support for expanding the Supreme Court by four seats, a proposal that House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) and Sen. Ed Markey (D-Mass.) introduced in April, other structural changes could be made to the court, Whitehouse said.
“Easy” reforms such as “proper disclosure and transparency” of the “gifts, travel and hospitality” the justices receive and the “people who are behind front-group amicus curiae briefs” and who were “funding the political advertisements for the last three judges, writing $15 million and $17 million checks.”
The volume of amicus curiae or friend-of-the-court briefs, in which someone who isn’t a party to the legal proceeding urges a specific outcome, has increased in recent years. Current Supreme Court rules already require disclosure in the brief about whether a party or its lawyer paid for the brief or whether anyone else helped to prepare it.
Markey said last week that attempting to work with a “GOP packed” court would be pointless.
“Trying to legislate with a GOP packed Supreme Court and the Jim Crow filibuster [sic] is always 1 step forward, 3 steps back,” he said on Twitter.
In fact, the practice of the filibuster, or of “talking a bill to death,” goes back to the founding of the American republic, according to the U.S. Senate, which was long before the era of Jim Crow racial regulations that followed the Civil War. The current rule on cloture, or ending debate on legislation in the Senate, requires 60 senators to vote in favor of ending debate.
Support to change the structure of the Supreme Court in the 50–50 Senate is thought to be well below the 60-vote threshold at the moment.
Sen. Jeff Merkley (D-Ore.), who supports ending the Senate filibuster, said “there’s no question the court’s legitimacy has been deeply damaged by the theft of a Supreme Court seat and of the change in rules so there wasn’t even an appropriate confirmation process,” referring to Senate Republicans who, in President Barack Obama’s final year in office, prevented the Supreme Court nomination of Merrick Garland, now U.S. attorney general, from coming to a vote in the Senate.
Merkley said “controversial court decisions will probably focus attention on the issue” of expanding the court but acknowledged “there’s no easy answer on how to restore the court to be fully legitimate, non-political arbiter of the Constitution.”