As Democrats promote legislation to add four justices to the Supreme Court, a bipartisan countereffort is moving to ban court packing permanently.
“We think it could be a really critical issue in the 2022 elections,” Roman Buhler told The Epoch Times.
Calls to pack the court rose to a fever pitch after President Donald Trump’s nomination of Amy Coney Barret. Known to be pro-life, Democrats worried her rise to the Supreme Court would herald the demise of Roe v. Wade, a fear that came to fruition in June.
Voters Oppose Court Packing
According to an October 2020 Washington Examiner/YouGov Poll, more than 60 percent of registered voters surveyed said they opposed packing the court with liberal justices if more seats were added to the court. While 47 percent said they would prefer to see a balanced court if it were expanded with additional seats, only 11 percent said they wanted the court to be “overwhelmingly liberal.”Even 52 percent of Democrats surveyed said they wanted the court to be balanced, with only 38 percent saying they wanted it to have a liberal majority.
Ultimately, the survey showed that 47 percent were against adding more seats to the nine-member Supreme Court, while only 34 percent were in favor of the idea.
“I have heard that there are some people on the Democratic side who would like to increase the number of judges,” Ginsburg said. “Nine seems to be a good number. It’s been that way for a long time.”
Buhler said Democrats “almost certainly lost” the 2020 Senate race in Maine because of the court packing issue, and that they may have lost races in other states for the same reason.
“Now what you’re seeing is Democrats in tight races across the country. But while all of them say they oppose court packing, none of them are willing to endorse an amendment that would ban court packing,” he said. “So swing voters might reasonably ask, if a candidate says they’re against court packing but won’t back an amendment to ban it, isn’t their position that they don’t really want court packing today but they want to reserve their power to pack the court tomorrow? That’s not a position I think swing voters would like very much.”
Of the 1,100 Americans surveyed, 64 percent said they opposed amending the Constitution to change the structure of the Supreme Court and 65 percent said they opposed altering the number of Supreme Court justices. An overwhelming majority, 73 percent, said they disapproved of the leak of the draft opinion.
In the current political environment, Buhler said more people are realizing that court packing is a very serious threat, not just to conservatives who are relatively content with most of the recent decisions of the court, but to Americans who realize than an independent court is the one thing that protects the people against the abuse of power by politicians in either party.
Democrats Push for Court Packing
On April 9, 2021, President Joe Biden issued an executive order forming a commission to conduct a 180-day study of potential changes to the Supreme Court, including court packing and term limits for justices.Bob Bauer, Biden’s former campaign lawyer and a former personal attorney for President Barack Obama, chaired the committee. Bauer also used to work for Perkins Coie, the law firm involved in the Russian “dossier” campaign funded by the Democratic National Committee and the Hillary Clinton campaign against then-candidate Donald Trump in 2016.
On July 18, seemingly in retaliation for the Supreme Court’s Roe v. Wade ruling, House Democrats called for the addition of four justices to the court via the 2021 Judiciary Act, which was introduced in Congress in 2021 but never brought to a vote.
According to Buhler, there are about 50 Democrats who openly support the expansion of the court, and about 250 Democrats who have refused to support an amendment that would prohibit court packing.
“The conclusion one might reasonably draw is that, if someone doesn’t want to support an amendment to ban court packing, they want Congress to keep the power to pack the court so they can do it the next time they have enough votes,” Buhler surmised.
Buhler worked with Ed Meese, who served as attorney general under President Ronald Reagan, to put together a bipartisan team of 17 former state attorneys general who support the Keep Nine Amendment.
They have been working on it ever since.
Keep Nine
The Keep Nine Amendment was first introduced in Congress on Sept. 24, 2020, by then-Rep. Collin Peterson (D-Minn.). The measure had four Republican and one Democratic cosponsors.
“When my term [as NFRW vice president] ended I just stayed involved with the amendment effort,” Jenkins told The Epoch Times.
Jenkins said the idea is to permanently prevent expansions or reductions of the court for partisan reasons by adding the following wording to the Constitution: The Supreme Court of the United States shall be composed of nine justices.
“That’s the exact wording of the amendment,” she said. “No more, no less.”
The Constitution currently allows Congress to change the number of justices on the court, Jenkins said.
“The people backing this amendment believe that since it’s been nine [justices] for over 150 years and it’s such an institution in American life, if there are calls at this point to add justices, that would keep the court from being independent,” she said. “The founding fathers set up the lifetime appointment for justices so they would not be swayed by political winds. The whole idea was they would interpret the law, moderate and check the powers of the other two branches.”
Penny Shares His Thoughts
In March 2021, North Carolina state Rep. Howard Penny filed a joint resolution in the North Carolina House, urging Congress to add the Keep Nine Amendment to the U.S. Constitution.
“Looking back in history, at that time there was a lot of discussion going on in Washington D.C. about the Supreme Court justices being appointed by President Trump and President Biden, and the Democratic leaders in Washington started talking about changing that, so I started doing some research to find out the history of the Supreme Court to find out why we have nine and where it started,” Penny told The Epoch Times.
The Supreme Court began with six justices when it was established in 1789, but it was subject to political maneuvering by Congress and the White House whenever the balance of power shifted. During the court’s first 80 years, the number of justices legally allowed on the bench changed seven times and ranged from just five to as many as 10 justices.
In 1869, the makeup of the court changed again to nine justices, where it has remained ever since.
“I am very adamant that our Constitution calls for things to be done a certain way,” Penny said, “and I wanted to make sure we ran a resolution we could pass on to our colleagues in Washington, saying ‘North Carolina wants to keep it the way it is.’”
How to Get Involved
Buhler said Keep Nine is the most popular Supreme Court reform in the country among both Republicans and Democrats. But in late January 2021, Google blocked the advertisements of Keep Nine, a move the organization labeled as “bizarre.” By early February, the Big Tech giant reversed its decision, claiming the ad against court packing was “flagged by mistake.”As the Keep Nine effort again gains traction, The Epoch Times asked Buhler how interested citizens could get involved.
“The first thing we would like people to do is to reach out to us,” Buhler said, “because what you can do depends on what state you live in. The politicians who will listen to you are the politicians you can vote for and your family can vote for.”
“Our goal,” Buhler said, “is to build a grassroots organization all over the country—a network, really—of people who will help educate their friends and their family and other voters about the importance of the Keep Nine Amendment for preserving the democratic process and the Constitutional checks and balances that we rely on to preserve our liberty.”
The Epoch Times reached out to Rep. Hank Johnson and Sen. Ted Cruz for comment.
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