Court packing threat: Even without clear path to passage, looming bill is warning shot to Roberts

Self-identifying moderate Democrats avowed their opposition to packing the Supreme Court while campaigning in 2020. Now, the progressive branch of the party thinks it has discovered that the threat of court packing may be a powerful enough weapon in and of itself to influence the way the high court decides politically tinged cases.

Last week, House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) and three congressional colleagues introduced a bill to expand the number of Supreme Court justices from nine to 13, ostensibly to manage the vastly expanded workload of the modern court. House Speaker Nancy Pelosi says she won't bring the Judiciary Act of 2021 to the floor before President Biden's recently appointed commission to study court expansion reports its findings. Yet, even without a clear, immediate path to passage, the bill sends a calculated political message to the justices.

The looming specter of court packing is "a shot across the bow of the Supreme Court, trying to pressure John Roberts, Brett Kavanaugh — the middle of the court — as they head into the last couple of months of this term," said Ilya Shapiro, editor in chief of the libertarian Cato Institute's Supreme Court Review. "They're trying to steer them away from decisions that progressives might not like."

Both the commission and the bill are ways "to keep the court in the headlines for the next 180 days as the court comes to the end of its term and starts deciding those really hot political questions," agreed Giancarlo Canaparo, legal fellow at the conservative Heritage Foundation.

The politically sensitive Roberts makes an especially inviting target for pressure tactics. A consensus-seeking swing vote, the chief justice sees himself as caretaker of the court's institutional image. 

"It’s also a way to keep the political pressure on certain justices like the chief justice, who we've seen in the past responds to political pressure and delivers outcomes for progressives in an attempt to appease the angst that he sees coming from that side of the government," Canaparo said during an appearance on "Just the News AM."

In 2019, several high-profile Senate Democrats issued what was widely seen as a warning to the court's conservative bloc — already bolstered by the confirmations of Trump appointees Neil Gorsuch and Kavanaugh — that if it did not change course, Democrats, once back in power, might act to dilute their power.

The warning came via an amicus brief by Sens. Sheldon Whitehouse (R.I.), Richard Blumenthal (Conn.), Mazie Hirono (Hi.), and Dick Durbin (Ill.), and Kirsten Gillibrand (N.Y.). "The Supreme Court is not well," the Democrats pronounced. "And the people know it."

"Perhaps the Court can heal itself before the public demands it be 'restructured in order to reduce the influence of politics,'" reads the brief, filed in opposition to a challenge to highly restrictive New York City gun regulations.

Did the ominous language of the brief work as intended? Roberts — and, to a lesser degree, Kavanaugh — joined the court's liberals in sidestepping a ruling in the case that might have gone against the city and strict gun control.

Sen. Whitehouse was unapologetic about the pointed warning in the brief in an interview with the Washington Post, "In the same way that you might warn somebody walking out on thin ice — 'Hey, the ice is thin out there, you want to be careful, maybe you want to come in' — I think that was the motivation for filing this brief," he admitted. "To warn the court that it already has its reputation in some degree of trouble ... it's getting to the danger that they might fall through the ice." 

The clear message then, as now, according to Canaparo, is that if the court fails to bend to the will of progressive politicians, those politicians will rewrite the rules of the judiciary.

Canaparo says that because progressive politicians sense this tactic has worked previously with Chief Justice Roberts, the question now becomes how the court's newest member, Amy Coney Barrett, will react.

"This will really hinge on where Justice Barrett comes out," he said. "We haven't seen her join any of the hot political cases yet because she joined in the middle of the term after they had been argued. So whether she is sticks true to her guns, and is the Scalia type of textualist and originalist she said she was, or whether she's more of the Chief Justice Roberts, politically malleable centrist, we'll see probably in the next month."