Six Senate Republicans introduced what could be the 28th Amendment to the Constitution earlier this week to prevent future politicians from increasing the number of Supreme Court Justices.
When the Constitution was ratified in 1787, the House and Senate were given full discretion in deciding the number of justices on the bench. Originally, 6 justices were appointed to the highest court. That number changed a total of six times, fluctuating between 6 and 10, up until the current number, 9, was set in 1869. Aside from FDR’s failed attempt to add 7 seats to the court in 1937 to make the Supreme Court more receptive to the New Deal, there have been no serious attempts to alter that number in over 150 years.
Fearing the politicization of the Supreme Court, Senate Republicans introduced the Keep Nine amendment, which simply states, “the Supreme Court of the United States shall be composed of nine Justices.”
If ratified, members of Congress would be unable to increase or decrease the number of justices regardless of reason, cutting off one avenue of doubt over the court’s impartial and nonpartisan decision making. If presidents and ruling parties were to abstractly add justices when in power, the court would endure the mutual escalation of more and more partisan appointees aimed at ruling in favor of their affiliated party. The Supreme Court would become yet another political branch of government rather than an interpreter of law.
According to Newsmax, Senator Ted Cruz of Texas “sponsored the amendment along with five other GOP senators, including North Carolina’s Thom Tillis, Arizona’s Martha McSally, Georgia’s Kelly Loeffler and both Mississippi senators—Cindy Hyde-Smith and Roger Wicker.”
“Don’t be fooled by Democrats’ hyperbolic rhetoric,” Cruz said in a Monday statement. “Packing the Court means one very specific thing: expanding the number of justices to achieve a political outcome. It is wrong. It is an abuse of power.”
“Make no mistake,” Cruz said, “if Democrats win the election, they will end the filibuster and pack the Supreme Court, expanding the number of justices to advance their radical political agenda, entrenching their power for generations, and destroying the foundations of our democratic system. We must take action before election day to safeguard the Supreme Court and the constitutional liberties that hang in the balance.”
During the 2020 Democratic Presidential Primary, several top contenders came out in favor changing the number of Supreme Court justices. South Bend Mayor Pete Buttigeig and former Texas Congressman Beto O’Rourke both supported increasing the number of justices to 15.
Massachusetts Senator Elizabeth Warren called increasing the number of justices “a conversation worth having,” while Vermont Senator Bernie Sanders suggested rotating lower court justices, likely ones who agree with his vision, into the Supreme Court.
At one point or another, each of those candidates led the pack of Democrats gunning for the nomination.
Their views have become mainstream. After Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court earlier this month, Senate Minority Leader Chuck Schumer said, if Barrett’s confirmed, “then nothing is off the table for next year,” including court packing.
House Judiciary Chairman Representative Jerry Nadler concurred, stating that the Senate’s attempt to confirm a Supreme Court nominee from a duly elected President carrying out their Constitutional powers was “undemocratic and a clear violation of the public trust in elected officials. Congress would have to act and expanding the court would be the right place to start.”
Democrats have repeatedly gone on the record in support of abolishing the filibuster, expanding the Supreme Court, and granting D.C. and Puerto Rico statehood if Republicans confirm ACB.
So far, Democratic nominee Joe Biden has outright refused to answer whether he’d be on board with packing the Supreme Court if Judge Barrett is confirmed – by all available estimates she will be confirmed next week.
Over the last month, reporters, and President Trump during the first debate, have repeatedly pressed the former Vice President on whether he’d support his colleague’s push to partisanly pack the court. When asked whether voters deserve to know what his position was on the unpopular proposal, Biden sharply told reporters “no, they don’t.” Rather, he said Americans will “know my opinion on court-packing when the election is over.” It’s been called entirely unacceptable by many for a presidential candidate to hide whether he’d deligitamize an entire branch of government.
According to a recent Gallup poll, 51% of Americans support confirming Amy Coney Barrett to the Supreme Court, compared to 46% of respondents who oppose the nomination. Similarly, if Barrett is confirmed, 58% of respondents to a New York Times poll oppose Democrats efforts to expand the Court with only 31% supporting the proposition.