Since the US Supreme Court's landmark decision to overturn Roe v. Wade last week, immediately rendering abortion illegal in multiple states, opponents of the ruling have been publicly considering their next moves.
Lawmakers on the left of the Democratic Party like Alexandria Ocasio-Cortez have suggested expanding the court as one possible route to reversing this decision.
58% of Americans had a negative view of the Supreme Court in a recent poll, up 22 points in the last three years. Among Democrats, the figure was a massive 84%. In the same poll, while voters opposed the overturning of Roe v. Wade, just 34% favoured the expansion of the court (62% among Democrats). Many pro-choice Americans will be looking to their elected representatives to offer practical solutions to this crisis, and if court expansion becomes the standout option among progressive circles, we should probably expect that Democratic figure to grow.
'Packing the court' faces a huge stumbling block, however, because Joe Biden opposes the idea. Though the president's reasoning isn't clear, some who share his view argue that such a move could potentially lead to effective infinite expansion, where the next time the Republicans get the opportunity, they will seek to expand the court again and re-establish a conservative majority and so on.
One option that could command more approval — indeed, a bipartisan commission found 'considerable' support for it recently — is introducing 18-year term limits on justices. With a nine-strong court, this would mean a president gets to nominate a new justice every two years, with the longest-serving justice retiring upon confirmation of a new one. This policy would remove the ability for court members to effectively game their retirement for when a president they are ideologically aligned to is in office. Biden's position on this particular option is unclear.
In the event that this move is pursued, it remains to be seen if term limits would be retrospective, and whether the four justices that will have served for 18 years in February 2024 would be replaced by Biden-appointed nominees (assuming they get past the Senate) to establish a liberal majority on the court. If this is not the case, pro-choice Americans would be waiting until 2026 at the earliest for a liberal majority, and this is contingent on the Democrats holding the presidency in 2024.
Undoubtedly, both reproductive rights and the Supreme Court will become major election issues in the 2022 midterm elections and potentially in 2024, but Democrats will be taking a huge risk if they seek to stall any practical moves until after the midterms in the hope it drives up Democratic turnout among pro-choice voters, given that the party is likely to lose control of the House and Senate in November.
If the Democrats want to make changes to the court's structure, they should probably move quickly and hope voters reward them for it, rather than dangling a carrot in front of pro-choice Americans.
At Smarkets, we have markets on Supreme Court expansion and term limits, which you can use to stay informed on the possibility that either option will occur by the end of next year. Current probabilities stand at 10% and 17%, respectively.
