Jim Hartman
Courtesy Photo
Progressive zealots’ efforts to alter the Supreme Court by adding four justices for nakedly partisan and ideological purposes have presently failed.
Numerous polls show court-packing hugely unpopular with the general public, just as it was defeated with overwhelming bipartisan opposition when attempted by President Franklin D. Roosevelt in 1937.
But progressive Democrats have not abandoned the implied threat to bring it back later.
Fortunately, Americans have an option to protect against either party ever attempting court-packing again: a constitutional amendment to keep the court at nine justices.
The amendment would be the shortest amendment to the U.S. Constitution.
It simply states:
“The Supreme Court of the United States shall be composed of nine justices.”
The amendment would set the current number of nine justices in the Constitution and prohibit a future Congress and president from altering the size of the U.S. Supreme Court.
If adopted, the “Keep Nine” amendment would become the 28th Amendment to the U.S. Constitution. Its text is simple and unambiguous.
That text would prevent any efforts to expand the Supreme Court beyond the nine justices that have been the established size since 1869. It would place in the Constitution what has been until now the statutory tradition: a court unchanged in size for 150-plus years.
By doing so it would preserve the independence of the Supreme Court from any effort to manipulate the size of the court for political advantage. An independent court free from the control of Congress is critical to the Rule of Law.
In 2020, a bipartisan group of former State Attorneys General (eight Democrats and seven Republicans) formed the “Coalition to Preserve the Independence of the U.S. Supreme Court” to support the amendment. That group now consists of 21 former AGs and includes Nevadan Robert List.
More than 500 current and former elected officials around the country support “Keep Nine.” In the 117th Congress (2021-22), 20 senators and 178 House members are resolution co-sponsors supporting the amendment. Nevada’s Mark Amodei is a co-sponsor.
A poll taken in September 2020 by McLaughlin and Associates found an overwhelming majority of voters favor the Keep Nine amendment to the U.S. Constitution. That poll showed voters support the amendment to stop court-packing by more than a 3-1 margin (62% to 18%).
To permanently end the risk of court-packing, simple opposition to court-packing is not enough. A constitutional amendment is required.
Amending the Constitution isn’t easy. Proposing an amendment requires two-third votes in both houses of Congress, and it takes 38 state legislatures to ratify it. The Constitution has been amended only 27 times in 234 years.
But an engaged public helped persuade Congress to propose the Bill of Rights in 1789, the 19th Amendment (guaranteeing a woman’s right to vote) in 1919, and the 22nd Amendment (setting presidential term limits) in 1947. Similar citizen energy could persuade Congress to propose the Keep Nine amendment.
For Republican legislators, supporting the amendment should be a no-brainer. Preserving the court is a popular cause with Republican voters.
Backing the Keep Nine amendment is a tougher sale to Democrats, but not every Democrat is a diehard burn-down-the–system progressive.
The late iconic-liberal Justice Ruth Bader Ginsburg opposed court expansion saying in 2019, “nine seems to be a good number.”
In his recent book written before his announced retirement, Justice Stephen Breyer, the Supreme Court’s pragmatic liberal dean, voiced strong opposition to current court-packing efforts.
And, President Joe Biden in 1983 denounced Roosevelt’s court-packing scheme as a “boneheaded idea. It was a terrible, terrible mistake to make.”
Nevada’s Democratic Sen. Catherine Cortez Masto has expressed strong reservations about expanding the size of the Supreme Court. Will she oppose court-packing permanently by supporting the Keep Nine amendment?
E-mail Jim Hartman at lawdocman1@aol.com.
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