Alleged Judicial Activism in Abortion Case Renews Calls for Supreme Court Reform

WASHINGTON — The draft of a Supreme Court ruling to overturn Roe v. Wade that was leaked to the media last week is renewing calls in Congress to expand the number of justices.

Democrats behind the proposal say the Supreme Court move to eliminate a federal right to abortion shows the nine-member court is too partisan and out of sync with the rest of the American population. Abortion rights are favored by a strong majority of Americans.

The supermajority of conservatives on the court now would be harder for any president to attain if the court had 13 justices, according to supporters of a larger Supreme Court.

The proposal was introduced in Congress last year by Democrats and reintroduced this year. It has 50 House co-sponsors but faces tougher opposition in the Senate.

President Joe Biden appointed a commission to study Supreme Court reform, which could include more justices.

Its supporters include Sen. Tina Smith, D-Minn., who said a bigger court would restore balance to the Supreme Court, particularly after former President Donald Trump succeeded in getting three conservatives appointed. They are Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

“Republicans will have to answer for their role in this attack on women’s freedom and equality,” Smith said. 

A Pew Research Center survey conducted in March found that 61% of U.S. adults believe abortion should be legal in most cases. Only 8% said it should be illegal in all cases.

“When I worked at Planned Parenthood in Minnesota, I saw firsthand how women had the capacity to make the right decisions for themselves,” Smith said. “How dare Justice Alito and other Supreme Court justices think they know better.”

The draft ruling, which was intended to be circulated among the other Supreme Court justices as they deliberate on how they will vote, was written by Justice Samuel A. Alito Jr. The final opinion in the Mississippi case of Dobbs v. Jackson Women’s Health Organization is scheduled to be released next month.

The court’s five most conservative judges already have signaled they will vote to overturn the 1973 Roe v. Wade decision. It legalized abortion and stands as one of the most significant rulings on women’s privacy rights in American history.

As protests continued Monday outside the Supreme Court and the homes of the justices, the commission appointed by Biden last year still is examining issues such as term limits on the court, a standardized code of ethics and procedures for selecting cases.

“The commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform,” a White House statement said.

The original proposed legislation, called the Judiciary Act, uses 13 as the ideal number of justices because there are 13 circuit courts of appeal, compared with nine when the Supreme Court was organized.

“Republicans stole the court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” said Sen. Ed Markey, D-Mass., who sponsored the bill. “Of all the damage Donald Trump did to our Constitution, this stands as one of his greatest travesties. Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women and our immigrant communities.”

Some civil rights groups, such as the Supreme Court reform advocacy organization Take Back the Court Action Fund, are using the dispute over abortion rights to push their cause.

“In the few days since Justice Alito’s frightening draft opinion leaked, congressional support for expanding the Supreme Court has grown, and polling has shown that a majority of the public does not want the Court to overturn Roe — and that a plurality supports Court expansion,” Sarah Lipton-Lubet, executive director of Take Back the Court Action Fund, told The Well News. “Leaders and the American public are coming to terms with the fact that only structural Supreme Court reform will safeguard our fundamental rights — and it’s now or never.”

House Speaker Nancy Pelosi, D-Calif., has declined to say whether she supports expanding the Supreme Court, only that it requires further study by the presidential commission.

Senate Minority Leader Mitch McConnell, R-Ky., said he would not even consider proposals to expand the court.

Criticism of the justices over the draft opinion continues among lawmakers. Several of them accuse the justices of deceit when they pledged during their Senate confirmation hearings to avoid being activists who promote their own political opinions on the Supreme Court.

Senate Majority Leader Chuck Schumer, D-N.Y., said some justices “lied to the U.S. Senate” during their confirmation testimony.

Trump appointees Barrett, Gorsuch and Kavanaugh each said when asked their opinions of Roe v. Wade that they would uphold Supreme Court precedents, regardless of their personal opinions.

Some Republicans, such as Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, said Alito’s draft decision showed sharp differences from what the Trump appointees said in their confirmation hearings.

Tom can be reached at [email protected] and @TomRamstack