Packing Supreme Court ‘a Historic Mistake’: Washington Post Editorial


In the wake of the U.S. Supreme Court hearing oral arguments in a Mississippi abortion case that could reverse the 1973 Roe v. Wade decision legalizing abortion nationally, and Democrats talking once again about adding liberal judges to the court, The Washington Post’s Editorial Board warned Tuesday that changing the makeup of the court because of a ruling that one party or the other doesn’t like would be ”a historic mistake.”

”Some Democrats believe the solution is to pack the court with Democratic nominees, expanding its size, while they still have congressional majorities,” the Dec. 14 editorial said. ”This would be a historic mistake. It would sap the court’s legitimacy for no long-term benefit; Republicans could re-pack the court the next time they controlled Congress and the White House.”

Democrats began conversations about possibly adding judges to the high court after then-President Donald Trump got three conservatives — Neil Gorsuch, Brett Kavanaugh and Amy Coney-Barrett — confirmed, giving the right a 6-3 majority for the first time in decades.

Abortion rights supporters are nervous that the court may reverse, significantly limit the period that a woman can get an abortion from its current 24-week threshold to between six and 15 weeks of pregnancy, or send the issue back for individual states to decide.

Several states have passed ”trigger” laws that, if Roe were overturned or sent back to the states to decide, would immediately go into effect, and limit or ban the procedure.

The concerns over Roe being struck down by the new, conservative majority led President Joe Biden to commission a study on changing the court.

That commission released its report this month with several possible changes being discussed, but none was recommended over any others.

Among the possibilities in the report were using Congress to legislate around unpopular rulings and imposing term limits on Supreme Court justices.

”The Commission does not purport to offer a consensus history of the last decades of conflict over the Supreme Court, nor does it come to a conclusion about whether the Court has suffered a loss or crisis of legitimacy,” the report said. ”Commissioners hold very different views on these matters.”

The Post editorial advised ”acting carefully” on the issue.

”Congress should indeed consider whether to act — but carefully. A new report from a bipartisan presidential commission underscores that court reform could bolster judicial independence and the court’s legitimacy,” the editorial said. ”Or it could do the opposite.”

The newspaper’s editorial stated that no one ruling should justify changing the court, and that this ”would invite criticism that the legislative branch was further politicizing the judicial one, upending the court because lawmakers dislike the policy outcomes that have resulted from justices’ decisions.”