Supreme Court Shoot Themselves in Foot as Democrats Prepare for Battle to Expand Court

The U.S. Supreme Court's failure to block a restrictive new Texas abortion law may have handed "ammunition" to progressives who want to see the court expanded, but reform remains unlikely, experts have told Newsweek.

The 5-4 decision not to grant an emergency application for a stay of Senate Bill (SB) 8 has renewed the debate about adding more justices to the nation's highest court, an idea referred to as court packing

Critics of the decision, including Associate Justice Sonia Sotomayor, have said the Texas abortion ban violates the precedent set in the landmark 1973 case Roe v. Wade and criticized the majority for allowing the law to go ahead.

Calls to reform the Supreme Court are likely to become more urgent following the decision, while some Democrats were already public supporters of expansion.

Representative Alexandria Ocasio-Cortez of the progressive "Squad" renewed her calls for expansion this week, as did Senator Ed Markey (D-MA), who is the cosponsor of a bill that would add four seats to the court.

Experts who spoke to Newsweek said that President Joe Biden would be under greater pressure, but it still remained highly unlikely that he would support the idea.

Paul Collins, a legal studies and political science professor at the University of Massachusetts, in Amherst, told Newsweek the Supreme Court may have bolstered proponents of expansion.

"The Supreme Court's five most conservative justices handed progressives substantial ammunition in the battle to expand the Supreme Court. By refusing to halt the law from going into effect, the court effectively overruled Roe v. Wade in the state of Texas, at least temporarily," Collins said.

"And they did it without giving the case full consideration, which will lead to calls not only for court expansion, but also for limiting the court's use of its shadow docket to make public policy."

"If the court were interested in avoiding being in the political thicket, it's difficult to imagine a dumber move. And other conservative states are likely to pass similar laws as Texas, adding more fuel to the fire," he said.

Gregory Caldeira, a professor of law at the Ohio State University who specializes in the Supreme Court, told Newsweek that Biden has other priorities.

"Of course, the court's response to the Texas abortion law will accelerate and intensify pressure on President Biden to support expanding the court," Caldeira said.

"But I doubt whether this pressure will move the president. First of all, he has shown little enthusiasm for the task of enlarging the court. Second, he has other, more pressing priorities in Congress; attempting to expand the court would tie up Congress and drag down his legislative program."

"Third, it seems to me, and I suspect to President Biden, expanding the court is a last-gasp move, if and when the court sets itself against all or nearly all of his legislative and executive priorities. We are far from that day," he said.

Thomas Gift, founding director of University College London's Centre on U.S. Politics, told Newsweek the court's inaction would lead to more progressive calls for reform.

"SCOTUS' failure to take action on the Texas abortion law will likely cause more rumblings among progressives to expand the size of the court—but that doesn't mean it will lead anywhere," Gift said.

No Mandate for 'Substantial Reform'

"Biden doesn't have anywhere near a mandate to pursue such a substantial reform, and he's personally too much of an institutionalist to go down that route," he went on.

"Earlier this year, the president did convene a commission to study the Supreme Court, including its size, but that was pure window-dressing to appease the left flank of his party. Biden has signaled no genuine intention of making court reform a priority, and SCOTUS' inaction on the Texas decision does nothing to change that," Gift said.

Susan Dunn, humanities professor at Williams College in Massachusetts, is the author of several books about Franklin D. Roosevelt, including 2018's A Blueprint for War: FDR and the Hundred Days that Mobilized America. She has previously argued that Roosevelt's plan to reform the court in the 1930s could still be used.

Dunn told Newsweek on Thursday that conditions today are different.

"The country is deeply divided and polarized now, in a way it wasn't when FDR proposed expanding the court," she said. "In the 1936 election, FDR's opponent Alf Landon, the governor of Kansas, won only two states: Maine and Vermont."

"FDR had a huge mandate to govern, and yet the Supreme Court was declaring his New Deal legislation unconstitutional. Citizens were rightly asking who is sovereign - 'We the people' or nine unelected old men, appointed for life?" Dunn said.

A Texas Protester Holds a Sign
A protester holds a sign before a protest outside the Texas state capitol on May 29, 2021, in Austin, Texas. The Supreme Court's decision not to block a restrictive new Texas abortion law is likely to add to calls for its expansion. Sergio Flores/Getty Images

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