Democrats push for adding justices to Supreme Court following leak of draft opinion on abortion

Chief Justice John Roberts calls leak a 'betrayal,' orders investigation

U.S. Sen. Elizabeth Warren, D-Mass., speaks to members of the press during an event on the leaked Supreme Court draft decision to overturn Roe v. Wade on the steps of the U.S. Capitol May 3, 2022, in Washington, D.C. In a leaked initial draft majority opinion obtained by Politico and authenticated by Chief Justice John Roberts, Supreme Court Justice Samuel Alito wrote that the cases Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey should be overturned. | Alex Wong/Getty Images

The leaked draft of a U.S. Supreme Court majority opinion overturning Roe v. Wade is leading to renewed calls from Democratic lawmakers to expand the number of justices on the court and pursue legislative means to legalize nationwide.

On Monday, Politico published a story unveiling the contents of a draft opinion in the case of Dobbs v. Jackson Women’s Health Organization authored by Supreme Court Justice Samuel Alito. The draft opinion, which fellow Republican-appointed Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas signed on to, concludes that Roe v. Wade and Planned Parenthood v. Casey, which established and upheld a right to abortion, respectively, “must be overruled.”

Top Democrats in Washington reacted with contempt to the draft opinion, which was dated Feb. 10 and is still subject to change, as the court’s official ruling in Dobbs has not been released.

In a statement released by the Supreme Court on Tuesday verifying the authenticity of the draft opinion, the court said it does not reflect a final ruling. Chief Justice John Roberts Jr. said whoever released the draft, committed a "betrayal" and called for an investigation into the leak.

"To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed," Roberts said. "The work of the Court will not be affected in any way.

He continued: "We at the Court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.

"I have directed the Marshal of the Court to launch an investigation into the source of the leak."

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021. | ERIN SCHAFF/POOL/AFP via Getty Images

President Joe Biden issued a statement Tuesday stressing that “we do not know whether this draft is genuine, or whether it reflects the final decision of the court.” He vowed that his administration “will be ready when any ruling is issued.”

“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” Biden added. “And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Chuck Schumer, D-N.Y., issued a joint statement Monday evening warning: “If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years — not just on women but on behalf of all Americans.”

They also maintained that a Supreme Court decision overturning Roe would go down as an “abomination” and “one of the worst and most damaging decisions in modern history.”

Ahead of the Supreme Court’s ruling in Dobbs, which deals with a 15-week abortion ban in Mississippi, Democratic senators threatened that any decision overturning Roe v. Wade would lead to an acceleration in their push to add justices to the Supreme Court, a process critics refer to as court-packing. Now that a draft opinion has surfaced indicating that a majority of justices seem inclined to overturn Roe, those threats are resurfacing.

Sen. Elizabeth Warren, D-Mass., took to Twitter Monday to call for drastic action to “stop this horrifying injustice in this tracks,” which included a demand to “Expand the Supreme Court.” Warren also expressed a desire to “end the filibuster” and “codify #RoevWade with a national law protecting rights.”

While the Democrat-controlled House of Representatives has already approved the Women’s Health Protection Act, which would codify Roe into law and restrict the ability of states to pass abortion restrictions, the measure died in the Senate. 

The Democrats have a narrow 50-50 majority in the Senate, with Vice President Kamala Harris casting the tie-breaking vote, and the filibuster rule requires most legislation to secure 60 votes for passage. However, Schumer indicated Tuesday that the Senate would hold another vote on the Women’s Health Protection Act. 

Warren is one of three Senate Democrats who have signed on as cosponsors to the Judiciary Act of 2021, which would increase the number of Supreme Court justices from nine to 13. Since the court currently consists of six judges appointed by Republican presidents and three justices appointed by Democratic presidents, adding four new jurists to the bench would nullify the Republican-appointed majority.

While the idea of adding justices to the Supreme Court has gained traction among many on the Left, it received a cool reception from one of their most beloved icons: the late Supreme Court Justice Ruth Bader Ginsburg. In a 2019 interview with NPR, the late Supreme Court justice, who consistently voted to uphold existing abortion precedent during her tenure on the bench, asserted that “Nine seems to be a good number.”

“It’s been that way for a long time,” she noted. Specifically, the Judiciary Act of 1869 set the number of justices at nine and the size of the court has remained the same ever since. 

Describing increasing the number of judges as a “bad idea,” Ginsburg predicted that it would “make the court look partisan.” She denounced the idea of “one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we have more people who would vote the way we want them to.” 

While calls to add more justices to the Supreme Court have intensified as the prospect of significant changes to abortion law looms large, the Judiciary Act of 2021 predates the court’s announcement that it would hear the Dobbs case. The initial efforts to expand the size of the Supreme Court stem from outrage over the Senate’s handling of vacancies on the bench that have materialized in recent years.

Rep. Alexandria Ocasio-Cortez, D-N.Y., a co-sponsor of the Judiciary Act of 2021 in the House, first called for an expansion of the Supreme Court following the confirmation of the Barrett, a Trump appointee, to the court in October 2020, just a week before the 2020 presidential election. Byron York, chief political correspondent for the Washington Examiner, elaborated on the source of Democratic outrage surrounding the appointments of Barrett and Gorsuch.

“On Feb. 13, 2016, Republican-appointed Supreme Court Justice Antonin Scalia died unexpectedly,” York recalled. “On March 16, [then-President Barack] Obama nominated then-Judge Merrick Garland to replace Scalia. But Republicans had a 54-seat majority in the Senate.”

“Then-Majority Leader Mitch McConnell refused to consider the Garland nomination, arguing that the decision on who should be on the court should wait for the next president,” York added. "McConnell cited the fact that it was a presidential election year as the justification for his position. Republican Donald Trump ultimately won the election and therefore got to appoint Scalia’s replacement. 

“From a Democratic point of view, the first of Trump’s choices, Gorsuch, was illegitimate, because it filled the seat Obama should have been allowed to fill,” York explained. When another Supreme Court vacancy popped up a month-and-a-half before the 2020 presidential election following Ginsburg’s death, the Republican-controlled Senate worked to swiftly confirm Barrett, even though it had argued four years earlier that voters should decide who should pick the next Supreme Court justice if a vacancy occurs in an election year.

York contended that the Democrats also view Barrett as “illegitimate.” The fact that two presidents who did not win the popular vote but won the Electoral College appointed “four of the five justices voting to overturn Roe” in the draft opinion only compounds Democrats’ concerns about the court’s legitimacy and “the nature of our political institutions,” York added.

Ryan Foley is a reporter for The Christian Post. He can be reached at:

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