Republicans Push for Amendment to Limit Supreme Court Justices Permanently to 9

October 21, 2020 Updated: October 21, 2020

Sen. Marco Rubio (R-Fla.) introduced an amendment that would cement the number of seats on the Supreme Court to nine, coming after some top Democrats have threatened to pack the nation’s highest court should Judge Amy Coney Barrett be confirmed.

“To prevent the delegitimizing of the Supreme Court, I am introducing a constitutional amendment to keep the number of seats at nine. Our institutions matter. Our Constitution matters. And we should fight to protect them,” Sen. Marco Rubio (R-Fla.) wrote in a statement.

Rubio and those who support his amendment to permanently limit the number of Supreme Court Justices to nine, said that the Supreme Court must remain apolitical and that increasing the number of justices each election cycle would erode that judicial institution and create a “super-legislature.”

The Constitution does not prescribe a number of seats to the Supreme Court. The number of the seats fluctuated until 1869, when it was set at nine and has remained at that number since.

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) has said adding Supreme Court justices to the court, also known as “packing the court,” would destroy the judiciary.

“I can’t think of a more destabilizing event for America than to change the number of judges on the Supreme Court every election cycle, because it becomes a winner take all for the court,” said Graham. “My belief that nine has served the nation well. And if we go down the road, that they’re talking about, that will destroy the independence of the judiciary.”

Meanwhile, some Democratic lawmakers have suggested they would support packing the court.

Vice presidential candidate Sen. Kamala Harris (D-Calif.) has refused to answer whether she would favor adding justices to the Supreme Court. In 2019, however, she told the New York Times she was “absolutely open to it.”

That same year, Harris told Politico: “We are on the verge of a crisis of confidence in the Supreme Court. We have to take this challenge head-on, and everything is on the table to do that.”

Meanwhile Democratic presidential candidate Joe Biden has come out to say he is not a “fan” of the idea but he hasn’t ruled it out either.

House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) also signaled his readiness to pack the Supreme Court.

“If Sen. McConnell and @SenateGOP were to fore through a nominee during the lame-duck session, before a new Senate and President can take office then the incoming Senate should immediately move to expand the Supreme Court,” wrote Nadler.

And Sen. Ed Markey (D-Mass.) wrote in a statement: “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”

Rep. Joe Kennedy (D-Mass.) also wrote that if McConnell “holds a vote in 2020 … we pack the court in 2021. It’s that simple.”

Republicans have gone on record saying they are against increasing the number of justices on the court and that the judiciary should be apolitical.

“Packing the Supreme Court would further politicize our judiciary system and erode public trust,” said Sen. Ben Sasse (R-Neb.). “There shouldn’t be red or blue jerseys on the Supreme Court, just nine black robes.”

Ivan Pentchoukov contributed to this report