Biden's Supreme Court commission to meet with key abortion case looming

Will an abortion case renew push for court packing?

Judicial Crisis Network President Carrie Severino and Pastor Robert Jeffress discuss upcoming case on ‘Fox News @ Night’

President Biden’s commission on the Supreme Court meets for the first time on Wednesday, triggering the 180-day deadline for the group to provide its report to the president on the status of the court and the issues surrounding it – including on packing the court. 

That means the commission’s report will be due in mid-November, likely around the same time as the Supreme Court will hear arguments in a major abortion case that it agreed to take up on Monday. 

The case, Dobbs v. Jackson Women’s Health Organization, concerns a Mississippi law that bans abortion procedures after 15 weeks. Lower courts blocked the law but Mississippi, like other right-leaning states in recent years, appealed the rulings to the Supreme Court in hopes that the new 6-3 Republican-appointed majority might expand the scope of allowable state regulations or bans on abortion. 

The development could lead to a major ruling likely next spring. It incensed Democrats and gave many on the right hope that the court might go so far as to entirely overturn Roe v. Wade, the case in which the court said women have a right to abortion. 

“Every life is precious and created with dignity and potential. There is no constitutional right to abortion, yet for nearly 50 years since Roe v. Wade was wrongly decided, more than 62 million children have been the tragic victims of abortion,” Sen. Steve Daines, R-Mont., said in a statement Monday. “It is long past time for the Supreme Court to right this wrong and I am encouraged to see the Court announce it will take up this case.”

“We don’t want to downplay this: Abortion rights are under attack and the case is directly challenging Roe v. Wade,” the American Civil Liberties Union tweeted.

“The consequences of a Roe reversal would be disastrous,” Rep. Eric Swalwell, D-Calif., tweeted. “Weakening or overturning Roe poses a threat to our fundamental rights to make personal decisions beyond abortion & it’s alarming that the Supreme Court has agreed to review an abortion ban.”

Biden’s commission will meet Wednesday with that major issue looming in the background. The group includes a diverse panel of left-leaning and right-leaning experts, ranging from the American Enterprise Institute’s Adam White to Harvard’s Laurence Tribe. 

The ideological diversity on the commission – along with its very limited mission of simply producing a report on the debate around the court, not actual recommendations – have made many on the left wary of any impact the commission could have. 

“Biden’s Commission is a woefully inadequate response to the dangers posed by this broken Supreme Court,” Brian Fallon, the executive director of the Demand Justice, said. 

Demand Justice is a left-leaning group that fervently supports packing the Supreme Court, which is increasing the number of justices in the body with the goal of producing more politically favorable rulings for the party of the sitting president. A group of congressional Democrats has gotten firmly behind this push now that Biden is in the White House. They may redouble their efforts ahead of the possible major 2022 ruling on abortion. 

“The Supreme Court has set its sights on Roe v. Wade – posing the most direct threat to reproductive rights in more than 30 years,” Rep. Mondaire Jones, D-N.Y., tweeted. “While others wait for a miracle, I’m leading the charge to restore balance and to #ExpandTheCourt.” 

The court-packing bill, which is sponsored by Jones along with Sen. Ed Markey, D-Mass., and Rep. Jerrold Nadler, D-N.Y., and others, would increase the number of justices on the Supreme Court from nine to 13. 

But the bill is highly unlikely to pass either the House or the Senate. Speaker Nancy Pelosi, D-Calif., indicated that the House will not take up the bill. And even if the Senate were to do so Democrats  do not have the votes for it. 

 In this April 23, 2021, file photo members of the Supreme Court pose for a group photo at the Supreme Court in Washington. The photo was the first with Justice Amy Coney Barrett (back row, far right) as a seated justice. She was lauded by conservatives as one of the most pro-life justices ever. (Erin Schaff/The New York Times via AP, Pool, File)
(Erin Schaff/The New York Times via AP, Pool, File)

Republicans, in the meantime, are celebrating what they see as a chance to accomplish a long-held goal in overturning Roe v. Wade, or at least severely limiting it. Conservatives were brought much closer to this goal with the confirmations of Justices Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch under former President Trump. Those confirmations were shepherded through the Senate by then-Majority Leader Mitch McConnell, R-Ky., along with hundreds of other judges to other federal courts. 

It’s not clear exactly how far each of the new justices is willing to go in potentially overturning Roe. But at least one sitting justice, Clarence Thomas, has been very vocal about his desire to do away with the precedent. 

“The Court now has the opportunity to correct a long-running misconception of Roe v. Wade – not to mention the Constitution itself – that presumed laws restricting abortion pre-viability are unconstitutional,” Judicial Crisis Network President Carrie Severino, a former Thomas clerk herself, said. 

“Great news! The Supreme Court will finally have the opportunity to overturn Roe v. Wade and restore the right to life in our country,” former Sen. Kelly Loeffler, R-Ga., tweeted. “It’s time to end abortion on demand once and for all.”

“This is a landmark opportunity for the Supreme Court to recognize the right of states to protect unborn children from the horrors of painful late-term abortions,” Susan B. Anthony List President Marjorie Dannenfelser said. “Across the nation, state lawmakers acting on the will of the people have introduced 536 pro-life bills aimed at humanizing our laws and challenging the radical status quo imposed by Roe. It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy.”

Despite the hand-wringing on the left and celebration on the right, many experts don’t see a completely definitive overturning of Roe v. Wade in the cards for the court next year. The justices often take a slower approach to turning around major precedents. Some experts see the court’s eventual ruling on the Mississippi law as a possible first step toward overturning Roe – or a bellwether that the Republican justices may not plan to overturn it at all – depending on what exactly the court decides. 

“We shouldn’t expect Dobbs to be the case in which Roe falls,” National Review senior writer Dan McLaughlin wrote Monday. “More likely, the Court could start cracking open the internal contradictions in its prior abortion jurisprudence, paving the way for more dramatic progress later — much in the way that the Court’s liberals used decisions striking down sodomy laws and the federal Defense of Marriage Act to lay the legal groundwork for overturning state bans on same-sex marriage. If Chief Justice John Roberts and some of the other Republican appointees on the Court are not on board with that campaign, we will know from their opinions in Dobbs.”

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