Exclusive: Progressives have a blueprint to unpack Mitch McConnell’s court
Senator Mitch McConnell of Kentucky speaking at the 2014 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Gage Skidmore/Flickr)

For nearly five decades the GOP has promised to eradicate Roe v. Wade, yet in the month since we learned the Supreme Court plans to do just that Democratic Party leaders still haven’t laid out a plan to save women’s reproductive rights as we’ve known them. That’s why three progressive Democratic senators say it’s time the party reconsiders their concrete, if highly disagreeable, blueprint to unpack Mitch McConnell’s court: Pack it themselves.

At the start of this Congress, both Senate Majority Leader Chuck Schumer and Speaker Nancy Pelosi dismissed calls to expand the size of the Supreme Court, but that was before news leaked that the court plans to overturn Roe. Progressives say the Democratic Party has already been outflanked by McConnell who they accuse of stealing President Obama’s final Supreme Court selection, and they say it’s foolish to pretend he didn’t.

“The deck is already stacked. I mean, talk about being a chump,” Sen. Tina Smith (D-MN) told Raw Story through an uncomfortable laugh. “All of this happened and then you say, ‘Oh, now we have to protect the integrity of the court. Now we have to do everything we can not to politicize the court.’ No. If you really believe that that’s happened, you have to get real.”

Since the leak, Democratic leaders have been holding show votes, steadily filling their campaign coffers, and reminding the base to vote in November. None of those efforts would rebalance the court, which is why Smith says the party needs to get its recent history straight on Merrick Garland never getting a vote, let alone nomination hearings.

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“The first step is recognizing what's happened, and then this next step is to figure out what to do about it,” Smith recently told us at the Capitol. “I think the court needs reform, and adding justices to the court is, to me, an obvious step to take.”

Even as the Democratic Party is derided as ‘the radical left’ by the right’s messaging machine, in the Senate the proposal to expand the Supreme Court from 9 to 13 justices is only supported by Sens. Smith, Elizabeth Warren, and Ed Markey. While the latter both represent solidly blue Massachusetts, Smith is technically a member of the Minnesota Democratic–Farmer–Labor Party (or DFL) whose ranks once included the likes of Hubert Humphrey and Walter Mondale.

The three senators aren’t necessarily more progressive than their Democratic colleagues, yet they remain outliers. Smith says they shouldn’t be. She endorsed the so-called court-packing measure at the end of last year, when the Supreme Court upheld a restrictive Texas anti-abortion law.

“I was like, ‘if you can't see in this moment that the Supreme Court has become a political arm of the extreme right-wing of the Republican Party, then you're never going to be able to see it,’” Smith continued.

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The House proposal to expand the size of the Supreme Court has 56 cosponsors. But even in the wake of the Roe leak, the progressive measure isn’t attracting much attention in the staid Senate.

“I haven't had a lot of conversations with my colleagues about this,” Smith said.

Neither has Sen. Elizabeth Warren (D-MA), but she predicts that will change in the coming weeks, months, and years.

“I think the magnitude of the Roe decision is still seeping through Congress and through the rest of the country,” Warren recently told Raw Story at the Capitol. “The impact of an extremist Supreme Court isn’t just overturning Roe – it’s so much more.”

Warren opposed expanding the size of the court while running for president, but at the end of 2021 she announced her change of mind in a Boston Globe op-ed where she described today’s 6-3 conservative majority as a “Republican hijacking”.

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“I don’t come to this conclusion lightly or because I disagree with a particular decision; I come to this conclusion because I believe the current court threatens the democratic foundations of our nation,” Warren wrote at the time.

While Democratic leaders have yet to unveil their strategy for rebalancing the Supreme Court, they’re keeping their distance from this proposal to expand the number of justices.

When asked about court-packing proposals, Senate Majority Whip Dick Durbin was quick to distance not just himself, but the whole party, from the proposal.

“No,” Durbin (D-IL) responded when Raw Story recently asked him about the measure at the Capitol. “No party position.”

Even with women and young girls nationwide on the brink of losing their reproductive rights, most rank-and-file Democrats are also refusing to consider a potential expansion of the Supreme Court.

“I don't think that's even on the table,” Sen. Cory Booker (D-NJ) told Raw Story at the Capitol. “The focus right now is trying to win a bigger majority.”

Booker is on the Senate Judiciary Committee. He maintains, even with polls steadily showing the GOP riding high going into the midterm elections, the answer for Democrat’s current quandary lies in the voting booth.

“I think this is clearly a point where a woman's bodily autonomy is on the ballot in November,” Booker said, “and if we are returned with a big enough Senate majority, we can protect the most sacrosanct principle in America, which is: the government can't tell me what to do with my body.”

Progressive darling, Sen. Bernie Sanders (I-VT), has also refused to sign onto the court expansion proposal. He says the answer to this conservative court is eradicating the filibuster, even if that means Mitch McConnell and Republicans could then ban abortions federally every time they regain the majority.

“That’s the way life is,” Sanders told Raw Story when asked about future Republican majorities outlawing abortion federally. “I think it’s terribly important in this moment that we do the right thing.”

The Senate proposal to re-pack the court is sponsored by Sen. Ed Markey (D-MA). When he first introduced it in the spring of 2021, he argued four additional justices were needed to protect vulnerable Americans.

“Republicans stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Markey said. “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.”

These progressive senators also support further ethics reform for the justices, along with proposals to increase transparency at the Supreme Court. But Sen. Tina Smith of Minnesota says those measures don’t address the current problem: That Roe’s days are numbered.

“I don't think ethics reforms by themselves are going to restore the balance to the court that is required now,” Smith argued.

Smith and the other progressives are open to other ideas to restore the makeup of the court, but those have been lacking.

“If anybody has a better idea, like, I'm all ears,” Smith told Raw Story, “but I haven't heard anything.”

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