Reps. Denver Riggleman (R-Va.) and Collin C. Peterson (D-Minn.) are proposing to amend the U.S. Constitution in order to permanently set the number of Supreme Court justices at nine, a move that is aimed at undermining efforts to pack the nation’s top court.
The congressman said they were worried that partisan efforts to expand the court’s size could set off a battle that could further polarize the country.
“If one party succeeds in packing the Court, the next party to hold a majority may choose to do the same in retaliation. My amendment will preserve the integrity of the Court and permanently protect Americans from these dangerous proposals,” Peterson said in a statement on Friday.
Several Democrats from both chambers have threatened to expand the Supreme Court if Senate Republicans move forward with filling a vacancy left by liberal Associate Justice Ruth Bader Ginsburg.
The move to expand the court size, in efforts called “court-packing,” would be aimed at reshaping the bench in favor of liberals or at the very least balance the ideological makeup of the bench if Democrats were to regain control of the Senate and White House in the next election. After Justices Neil Gorsuch and Brett Kavanaugh were confirmed to the bench, the court has been widely viewed to have a conservative lean, although Chief Justice John Roberts has in recent terms voted with his liberal colleagues on a number of controversial issues.
Democrats and progressives fear that if President Donald Trump is successful in confirming a third justice on the high court’s bench, the court will have a conservative lean for years to come.
Court-packing had previously been attempted and had proved to be unpopular. In 1937, President Franklin D. Roosevelt proposed a bill to expand the size of the Supreme Court to a maximum of 15 justices. Roosevelt’s motive was to shift the ideological balance of the court so that it would stop striking down one of his New Deal programs.
Although the Supreme Court and the federal judiciary are set up by the Constitution, it also gives Congress the authority to pass laws to set up the judicial branch, including how many justices on the top court.
The Constitution states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
The bar to amend the Constitution is very high as it requires two-thirds of the House and Senate to approve the text of the amendment and then requires three-quarters of the states to ratify the amendment. Given the current division in the country, such as effort is unlikely to succeed.
Riggleman and Peterson’s proposed amendment text states “The Supreme Court of the United States shall be composed of nine Justices.”
This is not the first time lawmakers have set out to propose constitutional amendments to limit the number of Supreme Court justices. Sen. Marco Rubio (R-Fla.) wrote an editorial last year to warn about the dangers of court-packing and introduced an amendment limiting the number on the bench at nine.
Trump is scheduled to name his nominee at 5 p.m. on Saturday. Some are predicting that he would choose Amy Coney Barrett, a federal judge in Indiana, to fill the vacancy.