The Court-packing debate has cooled off for a while since prominent Democrats introduced legislation in April to pack the Court with new justices for nakedly partisan and ideological purposes. Democrats are happy to move the question offstage. Court-packing is a massively unpopular and dangerous proposal, just as it was in 1937. At the moment, Democrats don’t have the votes in the Senate to break a filibuster, and they do not appear to have 50 votes for passage, either. But they have not abandoned the implied threat that they might bring it back if they get a bigger Senate majority or if the Supreme Court does something they dislike enough. 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.
If adopted, the “Keep Nine amendment” would become the 28th Amendment to the U.S. Constitution. Its text is simple and unambiguous: “The Supreme Court of the United States shall be composed of nine Justices.” That text would prevent any future efforts to expand the Supreme Court beyond the nine justices that have been its stable size since 1869. It would therefore constitutionalize what has until now been a norm: a Court that has stayed unchanged in size for 150 years. That norm survived an effort by Franklin D. Roosevelt to expand the Court for political purposes, an effort that was rejected as resoundingly as any proposal by a highly popular president has ever been rejected by his own party. Congressional Democrats were right to reject it in 1937, and to warn future generations — as they did — never to try the same thing again. Their judgment deserves to be enshrined in our Constitution.
Constitutional amendments have usually been used to make changes to our system. But on occasion, they have also been adopted to restore or protect some norm that has come under threat, or head off future crises. The Eleventh Amendment passed Congress in 1794 and was ratified in 1795 to restore state sovereign immunity from suits in federal court after a 1793 Supreme Court decision, Chisolm v. Georgia, had eroded that immunity. The Twelfth Amendment passed Congress in 1803 and was ratified in 1804 to repair flaws in the presidential-election system exposed by the controversy of the 1800 election. The 22nd Amendment, setting presidential term limits at two terms, passed Congress in 1947 and was ratified in 1951 after FDR had broken the norm set by George Washington against serving a third term.
The Keep Nine amendment is not the only one on offer. Senator Marco Rubio has also introduced an amendment in the last two Congresses providing that “the Supreme Court of the United States shall be composed of not more than nine Justices.” The Rubio proposal would also effectively prevent mischievous expansion of the Court for political purposes, but it would not prevent mischievous reduction of the Court for political purposes. As it happens, that has been tried twice. The Federalists reduced the Court from six to five justices to thwart the incoming Democratic-Republicans in 1801, but the reduction was immediately reversed in 1802. The Republican Congress also reduced the Court’s size to prevent Andrew Johnson from making any Supreme Court appointments between 1866 and 1868, but reversed that as soon as a Republican president (Ulysses S. Grant) returned in 1869. The Rubio amendment would be an improvement to the status quo, but the Keep Nine amendment is a better option: It is simpler to explain to the voters, it protects against both species of partisan mischief, and it currently has a lot more support and momentum.
Some may object that “composed of nine Justices” may somehow force the Senate to confirm nominees to vacancies, lest senators be accused of “shrinking” the Court by leaving an existing seat open. That was the tendentious argument made by some Democrats about the 2016 Republican refusal to confirm Merrick Garland. But this is a silly way of reading the language — and one that no sane court would ever attempt to enforce. The Constitution already provides for a chief justice, yet there have been confirmation fights and even filibusters directed at nominees for the job. Every state gets two senators, but that has not prevented there from being extended election contests that left a Senate seat vacant, sometimes with the Senate refusing to seat a contested winner for years.
Reviving the Amendment Process
Amendments to the Constitution used to be more common. Eleven of them passed Congress and were ratified in the 20th century. But the last one was half a century ago, in 1971, with the passage and ratification of the 26th Amendment to give 18-year-olds the vote. (The 27th Amendment, ratified in 1992, passed Congress in 1789 with the Bill of Rights.) It would be healthy to revive the amendment process and reclaim constitutional change for the people.
Article V of the Constitution provides two paths for an amendment, but one of those — a convention of the states to discuss amendments generally — has never been tried, and would open its own can of worms. The proponents of Keep Nine are not pushing that route. The traditional method, then, is to get two-thirds of the House and two-thirds of the Senate to agree on an amendment, after which it is ratified if three-fourths of the state legislatures — 38 states — agree. That is a formidable task, requiring significant bipartisan support. It requires convincing a lot of Democratic legislators in Washington and the states. (Neither the president nor the governors have a vote in the amendment process.) But there are reasons why the effort is worth trying even if it fails, and reasons why it is not unrealistic to think it could succeed.
The Partisan Incentives
For Republican legislators, supporting the Keep Nine amendment should be a no-brainer, which is reflected in its growing support. It would prevent Democrats from swiftly wiping away the 6–3 Republican-appointed majority on the Supreme Court. It would maintain the Court as a rule-of-law body, and while the power and prestige of the Court has not always been good news for conservatives, the maintenance of written law is a core conservative value. Preserving the Court is a popular cause with Republican voters. And Democrats have not been shy about wielding the barely veiled threat of Court-packing to intimidate the justices when they are considering rulings that adhere to the text and history of the Constitution but change the status quo — several of which are on next term’s calendar.
It is also good strategy. Keep Nine places Democrats on the defensive in a difficult spot while offering nothing but benefits to Republicans. Indeed, Republicans get to promote a cause that is popular with their base while sounding reassuring rather than alarming to persuadable voters who value American institutions. One Republican pollster found 62 percent to 18 percent support for the amendment in 2020. The question that can be posed to Democratic Senate candidates, including incumbents, is this: You say you’re against Court-packing, so why won’t you vote to ban it?
Keep Nine is also a mobilizing cause, which is an important value in politics. The amendment’s proponents have put a lot of effort into recruiting grassroots supporters, and plainly feel that the cause is one that can activate them. Groups that are on board with the Keep Nine fight include the National Federation of Republican Women, the American Legislative Exchange Council, Americans for Limited Government, FreedomWorks, My Faith Votes, Judicial Action Group, Eagle Forum, and Tea Party Patriots.
At this writing, over 80 percent of House Republicans and 24 Senate Republicans have endorsed Keep Nine, and the Republican National Committee passed a resolution of support. The coalition for the amendment spans every corner of the GOP coalition, from Ted Cruz to Susan Collins, from Denver Riggleman to Marjorie Taylor Greene. Chuck Grassley, Mike Lee, Tom Cotton, Rob Portman, Elise Stefanik, Brad Raffensperger, Mo Brooks, Lamar Alexander, Tom Ridge, Ed Meese, Dan Crenshaw, Louie Gohmert, Jim Banks, J. D. Vance, Ken Buck, and Mike DeWine have all endorsed it. The list of Senate supporters includes several of the key sponsors of Rubio’s competing amendment, suggesting that Republicans will ultimately coalesce behind Keep Nine.
Backing the Keep Nine amendment is a tougher sell to Democrats, but there is a two-pronged case in its favor. On the one hand, not every elected Democrat is a diehard burn-down-the-system progressive, and neither is every voter. Many of them used to believe the sorts of things that Joe Biden once said about the danger and folly of FDR’s Court-packing plan. Many of us learned in grammar school that this was a dangerous step that threatened the rule of law. Justices Ruth Bader Ginsburg and Stephen Breyer have criticized Court-packing. Surely, some Democrats who value the Court’s history genuinely believe that the Court is a valuable institution, and really believe that it would be better to have that option permanently off the table. Many progressives also fear that Republicans would pack the Court — or at least that Republicans would do so to retaliate if Democrats tried. The Keep Nine amendment is a neutral rule that would constrain both sides equally, and would not require the self-restraint of relying on norms.
This is how the amendment has gathered some support from Democrats. Collin Peterson, who was then fighting a losing battle to keep his House seat, was one of the amendment’s co-sponsors last fall. Three former Democratic attorneys general of Virginia have endorsed the amendment, as have former Democratic attorneys general of Maine, Vermont, Connecticut, and North Carolina and two former House Democrats from West Virginia. Rishi Kumar, the Democratic jungle-primary challenger to Anna Eshoo in 2020, came out swinging in favor of Keep Nine as a way to appeal to both Republican voters and progressives suspicious of escalation:
Democrats who care about protecting the rights of unpopular minorities, of preserving the right to privacy against government intrusion, and who believe that America should be governed by the rule of law, not by the whim of an aspiring authoritarian, should ensure that no future President or their allies in Congress can ever pack and undermine the independence of the Supreme Court . . .
We applaud Democratic Senate candidates for 2022 like Maggie Hassan in New Hampshire, Mark Kelly in Arizona, Michael Bennet in Colorado, and Catherine Cortez [Masto] in Nevada, who have expressed their strong reservations about expanding the size of the Supreme Court. However, Democrats need to do more than just say they oppose Court packing today. To reassure voters that we are sincere, we must make it clear that we oppose Court packing permanently and that we support a Constitutional Amendment to make sure it never ever happens, no matter which party is in control.
Backing the Keep Nine amendment may also be politically expedient for Democrats who want to be done with Court-packing questions. American Action Network is already running ads targeting House Democrats on the Court-packing issue. Passing Keep Nine would take an issue that polls well for Republicans permanently off the table. More than a few Democrats have already told voters that they would oppose Court-packing; they would pay a lower price with frustrated progressives for following through on that promise than the price they would pay with independent voters if they look as if they are hiding a secret intent to go back on their promises.
Up From the States
Can Keep Nine pass this Congress? It is quite unlikely, with Democrats running both Houses. But there are benefits for Republicans in forcing a vote that can put Democrats on the record, and potentially lock some of them in to supporting it later while exposing others to the voters as playing a cynical game on Court-packing. At least in the Senate, Republicans are in a position to force a vote. Under Senate Rule XIV, certain items can bypass committees and proceed directly to the Senate floor. As the lead Senate sponsor of Keep Nine, Ted Cruz has succeeded in getting the amendment designated to do so. The amendment is still subject to the filibuster, but that is irrelevant, since it can pass only with a two-thirds majority anyway. A cloture vote would still put Democrats on the record.
Absent an Article V convention, state legislatures cannot ratify an amendment until it has passed Congress. But by passing resolutions of support, legislatures can signal to Congress that they are prepared to ratify. Those resolutions can also put pressure on Congress to bring the amendment up for a vote. Several past amendments, including presidential term limits, suffrage for women and 18-year-olds, and Prohibition and its repeal, were passed after grassroots state-level campaigns spurred Congress to act. Ultimately, either 75 or 76 state legislative chambers are needed for ratification (75 if one of the states is Nebraska, which has a unicameral legislature). So far, Keep Nine resolutions have passed 19 state legislative chambers in twelve states. In six states, both houses of the state legislature have passed resolutions: Arkansas, Tennessee, North Dakota, South Dakota, Missouri, Montana, and Idaho. These are deep red states, making them the logical place to start. Resolutions have also passed the state senate in Indiana and the state houses of North Carolina, Ohio, Kansas, and Arizona.
The Commission Dodge
Joe Biden’s commission on Court reform was designed to get pesky questions about Court-packing out of the presidential race. It seems clear that the commission will try to steer away from recommending Court-packing, but will also try to avoid recommendations that would tie Biden’s hands from supporting it in the future when he has more Democratic votes in the Senate. The commission’s chairman, Bob Bauer, came out against Court-packing in a 2018 op-ed in The Atlantic, so his appointment signaled that the commission would not be laying the groundwork for Court-packing in the short run. Meetings have focused instead on proposals such as term limits for justices (which would require a constitutional amendment of its own), and liberal Supreme Court practitioners have testified against Court-packing. It seems unlikely that this is happening without the White House’s approval. Meanwhile, hundreds of pro-Keep Nine comments have been submitted by the public.
If there is one thing we should all have learned by now, however, it is that bad progressive ideas never die, they only retreat tactically. Now, while the issue is still in the air and on the agenda of prominent Democrats, is the right time to press for a permanent ban on Court-packing. It is time to Keep Nine.