Sen. Elizabeth Warren, D-Mass., left, and Sen. Patty Murray, D-Wash., talk to reporters as the Supreme Court was poised to overturn Roe v. Wade and urge President Joe Biden to use his executive authority to protect abortion rights, at the Capitol in Washington, Wednesday, June 15, 2022. (AP Photo/J. Scott Applewhite)

Earlier this month, I expressed concern that Democrats were responding to the loss of Roe v. Wade by forming a circular firing squad. Subsequently, the White House fired its shot. As The Washington Post was reporting on intraparty tensions, the Biden administration’s communications director sent the paper a biting statement: “Joe Biden’s goal in responding to Dobbs is not to satisfy some activists who have been consistently out of step with the mainstream of the Democratic Party. It’s to deliver help to women who are in danger and assemble a broad-based coalition to defend a woman’s right to choose now, just as he assembled such a coalition to win during the 2020 campaign.”

Several progressive activists fired back. “No one is asking Biden to do the impossible. We’re asking him to do the maximum,” tweeted UltraViolet Executive Director Shaunna Thomas. On CNN, the progressive pundit Ashley Allison, who described her work on the Biden 2020 campaign as leading “the coalitions department,” said she “took offense” at the swipe at “some activists” because “Guess who was a part of that coalition? Activists.”

Biden is not entirely out of sync with abortion rights activists, and he’s certainly not responsible for Dobbs. He supports the codification of Roe and suspending the Senate’s filibuster rule to make it happen. He signed an executive order directing the Department of Health and Human Services to protect access to contraception and abortion pills.

But some activists and Democratic officeholders want the president to assert executive power more aggressively—declare a public health emergency, set up abortion clinics on military bases, and shield abortion pill providers from legal liability. Biden administration officials have signaled reticence out of the concern that such moves will be blocked by the courts, violating the law—known as the Hyde Amendment—that prevents federal funds from paying for abortions and going beyond accepted public health emergency powers.

Such counterarguments are wholly unsatisfying to many progressives because they were already agitating to expand the Supreme Court with additional judges who would overpower the current conservative activist majority. (In January, the Congressional Progressive Caucus endorsed legislation adding four seats to the Court, just enough to allow Biden and a Democratic Senate to create a 7–6 Democratic Court majority.) One day after Dobbs, Senators Elizabeth Warren and Tina Smith wrote a New York Times op-ed that, along with calling for the declaration of a public health emergency, advocated for “changing the composition of the courts.” In a Twitter thread proposing various actions, Representative Alexandria Ocasio-Cortez included “Expand the court” along with “Restrain judicial review.”

However, Biden is not a lonely institutionalist moderate surrounded by aggressive norm-busting progressives. Several prominent Democratic senators and senatorial nominees—some with sterling progressive pedigrees—share Biden’s support for suspending or abolishing the filibuster and his opposition to expanding the Supreme Court.

In March 2021, John Fetterman, now a U.S. Senate candidate from Pennsylvania, declared, “Getting rid of the filibuster is as close to a litmus test for our party as I can describe.” But asked in an April 2022 primary debate about expanding the Court, he said Democrats should not “rig the rules simply because we do not like the outcome.”

Senator Raphael Warnock, a Georgia Democrat facing reelection this year, has already voted for the filibuster carve-out regarding voting rights. As for abortion rights legislation, he said in May, “No Senate procedure or Senate rule is more important than people’s constitutional rights.” But in July, when asked by The Hill about Court expansion, he dodged: “Right now, I’m focused on lowering costs for Georgians who are pushing their way back and want to see us cap the cost of insulin.”

Forty-eight Senate Democrats voted for the voting rights filibuster carve-out. The number of Senate sponsors on legislation to expand the Court? Three.

As you can see, we don’t have a cleanly defined intraparty divide between institutionalists and norm-busters. We have a faction of norm-busters and a faction willing to bust some norms but not the most significant norm of all (and a duo of pure institutionalists: Senators Joe Manchin and Kyrsten Sinema). Because Democrats don’t share the same goal, they can’t easily agree on measures to test or ignore what the Court deems constitutional. For many activists, provoking more unpopular judicial rulings helps build the case that the current Republican-dominated Court is illegitimate and that installing more Democratic justices is wholly justified. For those on the president’s side, fighting harder only to lose at the Court is no victory.

The underlying cause of the internal conflict, court-packing, is obscured. Biden hasn’t drawn attention to a Court expansion with lengthy monologues. Frustrated abortion rights activists are more inclined to charge Biden and other Democratic Party leaders for not fighting hard enough than to elevate the abortion debate into a court-packing debate. (In a late-June poll from NPR/PBS NewsHour/Marist, only 33 percent of registered voters supported “adding justices to expand the U.S. Supreme Court,” while 55 percent were opposed.)

More clarity would be helpful. Frankly, it’s confusing for Biden to make the norm-busting argument on the filibuster but not on court-packing. On July 8, Biden lashed out at “an out-of-control Supreme Court, working in conjunction with the extremist elements of the Republican Party, to take away freedoms and our personal autonomy.” If the Court is out of control, why not tame it by diluting the power of the activist judges?

In fact, Biden can square his beliefs on the filibuster and the Court’s composition. As I argued in May, once you can breezily change Court composition on a partisan basis, you no longer have an independent judiciary. Therefore, “fundamental rights cherished by progressives would never be guaranteed to last past each rightward political pendulum swing.” In other words, court-packing doesn’t secure reproductive freedom. Over the long term, it only locks us in our current predicament, where our rights are subject to the whims of the electorate. But since Biden has yet to make such an argument, he looks less like a stout defender of an independent judiciary and more like a timid politician. One can understand why Biden doesn’t want a fight over court-packing, preferring to focus on measures on which Democrats can agree. But the issue is quietly feeding dissension anyway. Democratic consensus on a post-Dobbs strategy is unrealistic at this point. But Biden can at least make it clear that he believes his approach will best protect abortion rights and that he is not afraid to do what he thinks is right.

Our ideas can save democracy... But we need your help! Donate Now!

Bill Scher

Bill Scher is political writer at the Washington Monthly. He is the host of the history podcast When America Worked and the cohost of the bipartisan online show and podcast The DMZ. Follow Bill on Twitter @BillScher.