Senate Minority Leader Chuck Schumer (D., N.Y.) said "everything is on the table," including court packing, if Republicans fill Ruth Bader Ginsburg's Supreme Court seat, but his current slate of candidates could thwart those efforts next year.
No Democrats running in competitive 2020 races publicly support expanding the size of the Supreme Court. Those who have spoken out are either opposed—such as Mark Kelly (Ariz.), Jon Ossoff (Ga.), and Cal Cunningham (N.C.)—or hesitant to commit.
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Ossoff and Kelly both announced this week they opposed court packing after earlier ambivalence on the issue. Cunningham told reporters court-packing efforts were the "exact wrong path," and Alaska independent Al Gross, who is running with Democratic support, said on MSNBC he also opposed adding new justices. Alabama senator Doug Jones (D.), who has the dimmest reelection hopes of any incumbent Democrat, called court packing "crazy."
Montana governor Steve Bullock (D.) said during his failed presidential bid that expanding the Court should be "on the table," but he reversed course with a statement through a Senate campaign spokeswoman that it is not a "solution to the challenges we face now."
Polls have consistently shown majority opposition to court packing since Franklin D. Roosevelt's failed effort to add six justices to the Supreme Court in 1937. A 2019 Rasmussen poll found only 27 percent of respondents supported expanding the Court's size, and a Fox News survey that year showed only 37 percent in support. A 2019 Marquette poll found 42 percent in favor but 57 percent still opposed.
Even with Joe Biden in the White House, Democrats could not change the size of the Court without Congress replacing the Judiciary Act of 1869, which set the Court's current number of nine justices.
Some candidates were not clear in their position. Like Bullock, former Colorado governor John Hickenlooper expressed openness to expanding the Court during his ill-fated presidential bid. Now a Senate hopeful, he told the Colorado Sun he would not entertain hypotheticals on the subject. In Maine, Democratic challenger Sara Gideon left open future support but said she had "doubts" that expanding the Supreme Court would make it a more independent body, according to Politico.
Iowa Senate hopeful Theresa Greenfield's campaign released a statement that "instead of adding more justices to the Supreme Court," she would support reforms like banning dark money and corporate PACs. Asked for clarification by the Free Beacon, the campaign did not respond.
Rev. Raphael Warnock, the leading Georgia Democrat in the jungle election for Sen. Kelly Loeffler's (R., Ga.) seat, declined to comment to the Atlanta Journal-Constitution when asked for his position. His campaign told the Washington Free Beacon it had nothing to add.
Some Republicans led by Sen. Marco Rubio (R., Fla.) support passing a constitutional amendment that would cement the number of Supreme Court justices at nine. Loeffler and Sens. Thom Tillis (R., N.C.) and David Perdue (R., Ga.), who are all running for their seats this year, cosponsored the resolution this week.
Michigan senator Gary Peters (D.) and Democratic challengers Amy McGrath (Ky.) and Jaime Harrison (S.C.) did not respond to requests for comment.
Sens. Ed Markey (D., Mass.) and Mazie Hirono (D., Hawaii) both called for court packing this week, but Schumer's threat against Republicans appears hollow without more support.