The Corner

Law & the Courts

Mitch McConnell Should Try to Cap the Number of Justices at Nine

Senate Majority Leader Mitch McConnell (R-KY) speaks to reporters following the Senate Republicans weekly policy lunch on Capitol Hill in Washington, D.C., June 30, 2020. (Jonathan Ernst/Reuters)

The Democratic nominee for president has refused to state whether he would support an effort to pack the Supreme Court. To add new justices for the first time since 1869 for purely partisan reasons would destroy the Court’s legitimacy, spur further court-packing down the line, and break Joe Biden’s promise to bring a sense of normalcy back to our politics. Indeed, packing the Court would be far more destructive — both culturally and institutionally — than anything Donald Trump has done as president.

Some have suggested that it is Republicans’ responsibility to prevent Democrats from causing such damage by agreeing not to confirm a replacement for the late Ruth Bader Ginsburg — an action supported by past precedent, and one that Republicans have the constitutional authority to take. Those voices have argued that because Congress has the constitutional authority to expand the court, a GOP that confirms Amy Coney Barrett would not have a leg to stand on in arguing against court-packing. Yet any reasonable observer should be able to see the difference between taking the routine step of filling a vacant seat and adding seats to erase a legitimately acquired originalist majority on the Court, so I reject out of hand that any such deal would be worth pursuing — and so have Senate Republicans.

There is something that Mitch McConnell could and should do, however: push for a constitutional amendment to cap the number of justices at nine. Right now, the Senate is busy turning Judge Barrett into Justice Barrett, but as soon as that important work is done, McConnell should shift gears and try to save the Supreme Court. It would be an attempt doomed to fail in that Senate Democrats would refuse to vote for it and Nancy Pelosi would never put it to a vote in the House. But besides being a good idea on the merits, it would put Democrats on the record and allow Republicans to get out ahead of the issue in the media and quash it before January.

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