Pass the 28th Amendment: The Case for Codifying a Nine-Justice Supreme Court

J oe Biden refuses to say whether he hopes to end a century-and-a-half long political settlement and “pack” the Supreme Court with judges upon whom his administration would invariably be able to rely. The Constitution of the United States should answer his question for him.

A proposed 28th Amendment reads: “The Supreme Court of the United States shall be composed of nine Justices.” If ratified, these 13 words would put the case to bed for good.

Such a provision would be equivalent in form and intent to the 22nd Amendment, which was introduced in 1947 and approved in 1951. In effect, the 22nd Amendment serves to codify an important and longstanding American tradition that progressives could no longer be trusted to respect: That two stints in the White House is enough for any man. Since 1797, when George Washington declined to run for a third term, presidents from all parties had served two terms and then called it quits. In 1920, Woodrow Wilson tried to break this pattern, and would, indeed, have run for a third time if his party had acceded to his wishes. Thankfully, the Democrats declined to acquiesce, in part because Wilson was no longer physically or mentally capable of doing the job, in part because his influence and popularity had dwindled, and in part because they were aware of the unwritten two-and-out rule as well. But their resolve lasted for only two more decades. In 1940, Wilson’s intellectual and partisan heir, Franklin Delano Roosevelt, received the Democrats’ blessing when he ran for a third term. Four years later, the party again backed him when he ran for a fourth term. In response to his death, early in that fourth term, Congress began preparing to make official what had hitherto been understood. In 1807, as he neared the end of his second term, Thomas Jefferson proposed that “if some termination to the services of the chief magistrate be not fixed by the Constitution or supplied by practice, his office, nominally for years, will in fact, become for life.” FDR had blown up the “supplied practice,” so “fixed by the Constitution” it would be.

A 28th Amendment setting the Supreme Court at nine justices would follow suit. Moreover, it would serve as a rebuke to precisely the same people and modes of thinking that the 22nd did. The idea of expanding the Supreme Court in order to neuter it was first proposed during the administration of — surprise! — Woodrow Wilson. Wilson never seriously pursued it, but, again, his heir, Franklin D. Roosevelt, did. Admirably, Roosevelt was stopped in his tracks by his own party, which, despite enjoying supermajority control in Congress, dismissed the notion as an enabling act for dictatorship. Rejecting Roosevelt’s proposal in 1937, the Senate Judiciary Committee seemed sure that the idea had been so “emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” If the committee turns out to have been wrong, the states should step in and take the option off the table for good. Alexander Hamilton observed that, unlike in the elected branches, life terms represent an “excellent barrier to the encroachments and oppressions of the representative body.” But there is, of course, no virtue in this arrangement if judges can be added to the Court at will.

It would be highly appropriate for such a rule to be placed into the Constitution, given that what we are seeing unfurl now in D.C. is not really a fight over the Supreme Court, so much as a fight over whether we should keep that Constitution at all. It is remarkable that it has taken this long to arrive. More than a century has passed since Woodrow Wilson insouciantly announced that the highest law in the land was outmoded and should be replaced, and it is only by chance that his worldview has seeped into the law gradually. FDR may have been repudiated in his attempt to blow up the Court, but, by the end of his life, he had served so long that he had appointed eight of the nine justices, and the “problem” that he was trying to “fix” had largely gone away. Since then, the desire to abolish the Court has been less pressing, either because a majority of justices has been willing to make up the law, or because enough justices have been willing to consider making up the law to give those who wish to “evolve” the Constitution into meaninglessness a shot at getting what they want. Sometimes, it has looked as if that might change, and when it has, the Democratic Party has all but lost its mind. (For examples of this, consider the cases of Bork, Thomas, Alito, and Kavanaugh.) But, until now, there has been no real danger that the law would be consistently read as written.

With the nomination of Amy Coney Barrett, that has changed. In response, many within the Democratic Party have adopted a posture of open revolt for the first time since the New Deal. Understanding that they cannot say the quiet part out loud, both they and their enablers have resolved to flip between refusing to answer the question and issuing Orwellian nostrums whose meaning is precisely at odds with the truth. Joe Biden is a particularly egregious offender on this score, having simultaneously declined to confirm whether he will destroy the Court and described the standard operation of the nominations process as “court packing.” Biden assuredly knows better: In 2005, he described Roosevelt’s court-packing plan as an outrageous “power grab” proving that Roosevelt was “corrupted by power.” In his new stance, he is being joined by an increasing number of journalists who also know better, but do not care. Perhaps the most extraordinary newspeak has come from the Associated Press, which has started describing the explicit desire to increase the number of judges for partisan gain as “depoliticization” and casting those who oppose it as mere “critics.” Thus are we arriving at a point at which the official position of the Democratic Party is that Roe v. Wade is a “super precedent” but that having nine justices on the Supreme Court is a recent quirk.

This extremism will not do. Given that whichever party takes the Senate this year is likely to do so narrowly, it is highly unlikely that court-packing will make it off the op-ed pages any time soon. But, as history shows, free people often live just one unforeseen crisis away from the edge. To prevent this risk from keeping us all up at night, we write good rules down in transient law, and we write great rules down forever. A nine-justice Court works. Let’s make it official.