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

May 9, 2022 by Tom Ramstack
Alleged Judicial Activism in Abortion Case Renews Calls for Supreme Court Reform
Chief Justice of the United States John Roberts departs at the end of the day in the impeachment trial of President Donald Trump on charges of abuse of power and obstruction of Congress on Capitol Hill in Washington, Wednesday, Jan. 29, 2020. (AP Photo/Patrick Semansky, File)

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

A+
a-

Updates

This post has been updated to include a quote from Sarah Lipton-Lubet, executive director of Take Back the Court Action Fund and reference to the group was changed from Supreme Court Advocacy to Supreme Court reform advocacy group.

In The News

Health

Voting

Supreme Court

After Supreme Court Backs Praying Coach, No Sweeping Changes

Across the ideological spectrum, there were predictions of dramatic consequences when the U.S. Supreme Court ruled in favor of a... Read More

Across the ideological spectrum, there were predictions of dramatic consequences when the U.S. Supreme Court ruled in favor of a public high school football coach’s right to pray on the field after games. Yet three months after the decision — and well into the football season... Read More

September 16, 2022
by Tom Ramstack
Court Order Requiring Yeshiva Univ. to Recognize Gay Rights Group Remains in Place for Now

WASHINGTON — The legal fight isn’t over after the U.S. Supreme Court this week declined to overturn a state court... Read More

WASHINGTON — The legal fight isn’t over after the U.S. Supreme Court this week declined to overturn a state court order requiring New York’s Yeshiva University to give official recognition to a student gay rights group. The university said the court order trampled its First Amendment... Read More

September 11, 2022
by Dan McCue
Chief Justice Says In-Person Oral Arguments Will Resume in October

COLORADO SPRINGS, Colo. — Chief Justice John Roberts revealed Friday night that the public will be allowed back into the... Read More

COLORADO SPRINGS, Colo. — Chief Justice John Roberts revealed Friday night that the public will be allowed back into the Supreme Court building to hear oral arguments when the justices return to work in October. Roberts made the announcement, which has yet to be posted on... Read More

August 31, 2022
by Tom Ramstack
Supreme Court Advised to Avoid Territorial Citizenship Case

WASHINGTON — The Biden administration on Monday told the U.S. Supreme Court to let Congress decide the citizenship of residents... Read More

WASHINGTON — The Biden administration on Monday told the U.S. Supreme Court to let Congress decide the citizenship of residents of U.S. territories rather than intervening with a court ruling. The U.S. solicitor general informed the Supreme Court of the Biden administration’s advice in a legal... Read More

Post-Roe Differences Surface in GOP Over New Abortion Rules

MADISON, Wis. (AP) — When the U.S. Supreme Court repealed in June a woman's constitutional right to an abortion, Wisconsin's 1849 law... Read More

MADISON, Wis. (AP) — When the U.S. Supreme Court repealed in June a woman's constitutional right to an abortion, Wisconsin's 1849 law that bans the procedure except when a mother's life is at risk became newly relevant. Republicans in the Legislature blocked an attempt by Democratic Gov. Tony Evers to... Read More

July 29, 2022
by Tom Ramstack
Bill Would Help Congress Counteract Supreme Court Rulings

WASHINGTON — Senate Democrats proposed a bill Thursday that would authorize Congress to override Supreme Court decisions that interpret constitutional... Read More

WASHINGTON — Senate Democrats proposed a bill Thursday that would authorize Congress to override Supreme Court decisions that interpret constitutional rights or federal statutes. The Supreme Court Review Act would streamline procedures for Congress to use legislation to amend statutes or to create new legal rights... Read More

News From The Well
scroll top