The next few weeks are likely to be among the most polarizing and divisive in recent memory. But there should be one issue around which a broad bipartisan majority of Americans can agree.
“The Supreme Court of the United States shall be composed of nine Justices.”
That is the language of the proposed “Keep Nine” Amendment to the U.S. Constitution. It would permanently preserve the independence of the Supreme Court. We urge Members of Congress and candidates in both parties to endorse it.
The Constitution is silent on the size of the Supreme Court. Without an Amendment defining the number of Justices, a future Congress and President could change that number for political advantage. This strategy is known as “Court packing.”
Polling shows that by a more than 3-1 margin, voters would support the “Keep Nine” Amendment. Support among moderates and independents is nearly 4-1.
There have been suggestions that a new President with a majority in Congress might do what FDR famously failed to do…pack the Court. FDR sought to increase the number of Supreme Court Justices and then fill those new positions with ideological allies.
FDR’s plan was rejected by the American people and Congress. It divided his allies, and emboldened his opponents.
“Court packing” was then and would be today a disaster for the nation and any party that embraced it. If one party packed the Court, another party with a new majority would retaliate by trying to pack the Court again. The result would undermine both the independence of the Court and the rule of law itself.
Polling shows that a majority of voters believe that packing the Court would weaken the checks and balances on the abuse of power by a future President or Congress.
Candidates in close races who were perceived as receptive to Court packing could lose and cost their party the chance of winning control of the White House or Congress.
Several Presidential candidates in last year’s Democratic Primary contest indicated an interest in expanding the size of the Court. But the eventual nominee, Joe Biden, was clear in his opposition to Court packing.
President Trump has likewise denounced efforts at Court packing.
But stated opposition to Court packing today is not enough to permanently protect the nation from the bitter and divisive consequences of a possible future Court packing attempt.
Political positions, the occupant of the White House, and majorities in Congress can change over time. To permanently preserve the independence of the Court from a future President and Congress that might wish to manipulate it, a Constitutional Amendment is required.
Some might say that amending the Constitution is too difficult. But America just celebrated the 100th Anniversary of the adoption of the 19th Amendment, guaranteeing women the right to vote, which Congress ratified because of overwhelming pressure from voters and states around the nation.
In the same way that the 22nd Amendment codified the longstanding two term limit for Presidents, a new 28th Amendment would permanently preserve the current number of nine Supreme Court Justices. Justice Ruth Bader Ginsburg, who opposes Court packing, has called nine “a good number.”
We urge the Democratic Presidential nominee, Joe Biden, and the Republican nominee, President Donald Trump, and candidates for Congress, regardless of party, to endorse the “Keep Nine” Amendment. Their support will ensure the U.S. Supreme Court remains an independent guardian of our rights and freedoms for future generations.
As those future generations look back on our era they might observe that 2020 was a turning point. Perhaps 2020 will be remembered as the year American leaders, despite their deep differences on many issues, came together as unifiers to protect the independence of one of the key institutions that protects our democracy.