A pair of recent Supreme Court rulings has revived left-wing activist chatter about court-packing, but no obvious path toward getting legislation to do so through a closely divided Senate.
The situation creates a Catch-22 for the Left: they do not have the votes to pass their most sweeping legislation and they also have reason to fear whether bills they can get through might be struck down as unconstitutional by a court that now has a solid conservative majority on some important questions.
On Thursday, the justices voted 6-3 to uphold Arizona’s voting law, which banned ballot harvesting — the practice of allowing third parties to collect absentee ballots and drop them off for counting — and invalidating votes cast in the incorrect precinct. Democrats argued that both provisions had a disparate impact on racial minorities in violation of the Voting Rights Act of 1965.
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By the same margin, the Supreme Court tossed California’s donor disclosure requirement. The decision was hailed as a blow for donor privacy but denounced by liberals as a win for dark money in politics.
In both rulings, the justices broke down along bloc lines. Conservatives have had a 6-3 majority since the confirmation of former President Donald Trump’s final nominee, Amy Coney Barrett, last year, although not all decisions break down along liberal versus conservative lines.
Even Chief Justice John Roberts, who has emerged as more of a swing vote since the retirement of Justice Anthony Kennedy, sided with the conservative majority in both cases. Roberts wrote the majority opinion in the California donor disclosure decision.
Liberals were especially infuriated by the voting rights decision. President Joe Biden’s Justice Department, under the leadership of Attorney General Merrick Garland, is planning a lawsuit against the Georgia voting law passed by that state’s Republican-controlled legislature. Congressional Democrats have been trying to pass an election overhaul bill, though their further reaching one, the For the People Act, has been stalled in the Senate.
Now there are questions about whether the Arizona ruling invalidates the legal argument the Biden Justice Department was planning to use or whether the For the People Act — or a compromise voting rights measure pushed by Sen. Joe Manchin, a centrist Democrat from West Virginia — would be overturned if enacted.
These concerns led to a new flurry of calls to expand the Supreme Court in order to increase the number of liberal justices.
“Today’s ruling is another blow to voting rights,” tweeted Sen. Ed Markey, a Massachusetts Democrat. “We must abolish the filibuster and pass the For the People Act and John Lewis Voting Rights Act. And we must expand the Supreme Court.”
“SCOTUS decision gutting what’s left of VRA shows how desperately For the People Act & John Lewis Voting Rights Act needed,” tweeted Mother Jones writer Ari Berman, who covers voting rights issues. “Just like with VRA in 1965, only Congressional action can stop the onslaught of voter suppression. And expand the court so it doesn’t strike down new laws.”
“Can we finally stop pretending it’s radical to expand the Supreme Court, abolish the Electoral College, and end the filibuster?” asked Robert Reich, a liberal activist and former secretary of labor under President Bill Clinton. “We do these things, or we let democracy die. It’s really that simple.”
“EXPAND THE COURT OR YOU GET NOTHING,” tweeted the Nation’s Elie Mystal (emphasis in the original).
But Democrats do not currently have the votes to eliminate the filibuster, which requires most legislation to reach a 60-vote threshold to end debate in the Senate, or expand the Supreme Court. In the upper chamber, they do not appear to have enough votes to pass the For the People Act, even without the filibuster.
The Senate is split 50-50, with Vice President Kamala Harris’s tie-breaking vote keeping Democrats in control. Republicans are just seven votes short of a majority in the House. Democrats will defend both chambers in next year’s midterm elections, when the president’s party is normally expected to lose seats.
Democrats believe changes to the voting laws and the addition of states, such as Puerto Rico and the District of Columbia, are important to their long-term electoral prospects.
Biden has been noncommittal about court-packing legislation dating back to the campaign, appointing a commission to study the idea. A Washington Examiner/YouGov poll last year found that a plurality opposed expanding the court to shift its ideological balance while only 34% were in favor.
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Even if Democrats don’t have the votes to expand the Supreme Court and don’t appear likely to gain them soon, court-packing talk can still have an impact. Roberts is widely believed to take the court’s nonpartisan reputation and institutional legitimacy into account when deciding how to vote on close cases.
“Intimidating Chief Justice Roberts is practically the whole point,” said a conservative court watcher.
