Democrats push to pack the Supreme Court, abolish filibuster, after leaked abortion draft opinion

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Ari Fleischer: Abortion is an interpreted right and should be best left up to legislatures

Fox News contributor Ari Fleischer on leak of draft opinion suggesting Supreme Court would move to overturn Roe v. Wade.

Prominent Democrats have demanded radical changes to the United States' system of government in the wake of the Supreme Court's leaked abortion draft opinion overturning the Roe v. Wade (1973) abortion precedent, from packing the Court to abolishing the Senate filibuster.

Chief Justice John Roberts confirmed Tuesday that Justice Samuel Alito's draft opinion in the case Dobbs v. Jackson Women's Health Organization was genuine – although the draft dates back to February, and it does not represent the current or final opinion of the court. In the draft, Alito strikes down Roe v. Wade, which struck down state laws across the country, and allows states to again make their own laws on abortion.

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"Right-wing extremists have hijacked the Supreme Court of the United States," Sen. Elizabeth Warren, D-Mass., tweeted Tuesday. "We must #ExpandTheCourt to rebalance it and defend our basic rights, including the constitutional right to an abortion."

Democratic presidential candidate Sen. Elizabeth Warren visits with striking teachers at Oscar DePriest Elementary School on Oct. 22, 2019, in Chicago.  (Scott Olson/Getty Images)

"A stolen, illegitimate, and far-right Supreme Court majority appears set to destroy the right to abortion, an essential right which protects the health, safety, and freedom of millions of Americans," Sen. Ed Markey, D-Mass., tweeted Monday. "There is no other recourse. We must expand the court." He later added, "Now is the time to add four more seats to the Court, restore balance, and protect the right to an abortion."

"I don’t care how the draft leaked. That’s a sideshow," Rep. Adam Schiff, D-Calif., tweeted Wednesday. "What I care about is that a small number of conservative justices, who lied about their plans to the Senate, intend to deprive millions of women of reproductive care. Codifying Roe isn't enough. We must expand the court."

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Rep. Ilhan Omar, D-Minn., a member of "The Squad," called for both packing the Court and abolishing the Senate filibuster, the rule that requires 60 votes or more to proceed to a final Senate vote on most legislation. 

"Expand the court. Abolish the filibuster. Pass the Women's Health Protection Act to codify Roe v. Wade into law," she tweeted Wednesday.

Rep. Ilhan Omar speaks at a "Black women in defense of Ilhan Omar" event on April 30, 2019, at the Capitol in Washington. (Olivier Douliery/Abacapress.com)

Rep. Katherine Clark, D-Mass., the fourth-highest ranking Democrat in the House of Representatives, also called for abolishing the filibuster in order to pass the Women's Health Protection Act, which would codify Roe and make some kinds of abortion legal through all nine months of pregnancy, blocking many state laws on the practice.

"5 Supreme Court Justices, appointed by Presidents who lost the popular vote & confirmed by 50 Senators who represent less than half the country, are poised to overturn #Roe, despite the fact that Americans in every single state support the right to abortion," Clark tweeted with the hashtag "#AbolishTheFilibuster."

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"Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW," Sen. Bernie Sanders, a Vermont Independent who caucuses with Democrats and who has twice finished as the runner-up in a Dmeocratic presidential primary, tweeted Monday. "And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes."

Rep. Alexandria Ocasio-Cortez is joined on stage by Democratic presidential candidate Bernie Sanders during the climate crisis summit at Drake University on Nov. 9, 2019, in Des Moines, Iowa. (Stephen Maturen/Getty Images)

Rep. Alexandria Ocasio-Cortez, D-N.Y., went so far as to call for a primary challenge against Sen. Kyrsten Sinema, D-Ariz., on the issue of abortion, despite Sinema's 100% rating from NARAL Pro-Choice America, because Sinema supports the filibuster.

"We could protect Roe tomorrow, but Sinema refuses to act on the filibuster," Ocasio-Cortez tweeted in response to Sinema's statement condemning the leaked draft opinion. "Until that changes she can take a seat talking about ‘women’s access to health care.’ Hold everyone contributing to this disaster accountable, GOP & Dem obstructionists included. She should be primaried."

Despite these calls for the abolition of the filibuster, it remains unclear if the Roe bill would actually get 50 votes (plus one with Vice President Kamala Harris), should it come to the Senate again. The Women's Health Protection Act failed in the Senate by a vote of 46-48 in March, with Sen. Joe Manchin, D-W.Va., voting with Republicans against the bill. 

Democrats have increasingly called for radical changes to the U.S. government in recent years. Although Joe Biden, as a senator in 1987, condemned former President Franklin Delano Roosevelt's scheme to add new members to the Supreme Court amid the court's early unfavorable rulings on New Deal cases in the 1930s, he refused to pledge not to add seats to the court during the 2020 election. Last year, he issued an executive order creating a commission to study "Supreme Court reform." The commission he created voted to send him "no position" on the issue.

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The Constitution does not stipulate the size of the Supreme Court or the filibuster rule. In Nov. 2013, the Democratic-majority Senate voted to change the rules to approve judges – except Supreme Court justices – with a mere majority vote. In April 2017, the Republican-majority Senate allowed the approval of Supreme Court justices by majority vote.

By advocating such drastic reforms in order to block the effects of one Supreme Court ruling, Democrats may be falling afoul of the late Supreme Court Justice Ruth Bader Ginsburg's warning about rulings like Roe v. Wade. While Ginsburg firmly supported abortion, she warned that Roe represented a drastic move that "may prove unstable."

"Measured motions seem to me right, in the main, for constitutional as well as common law adjudication," she argued in 1992. "Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade."

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If Democrats pack the court now or abolish the filibuster now in pursuit of passing an abortion bill, they may enable a future Republican president and/or Republican-majority Senate to pass legislation or pack the court further, and even to reverse abortion law far more radically than the leaked draft opinion did.