Constitutional Amendment to Prevent Supreme Court Packing Resurfaces

Constitutional Amendment to Prevent Supreme Court Packing Resurfaces
The U.S. Supreme Court in Washington on May 27, 2014. (Chip Somodevilla/Getty Images)
Matthew Vadum

Sen. Shelley Moore Capito (R-W.Va.) introduced legislation on Jan. 22 to amend the U.S. Constitution to limit the Supreme Court to nine justices, the numerical cap that has been in place for well over a century, in order to prevent Democrats from enlarging the court’s membership.

Amending the Constitution is no easy task. The amendment bill must pass by a two-thirds supermajority in both houses of Congress and then be ratified by three-quarters of the states, or 38 of the 50 states, to become part of the Constitution.

The move comes after then-President Donald Trump’s conservative constitutionalist nominee, Amy Coney Barrett, was confirmed before Election Day, replacing the liberal Ruth Bader Ginsburg, who died in September.

Filling the seat quickly in an election year enraged many Democrats, given the precedent of Merrick Garland. Following the election-year death in 2016 of Justice Antonin Scalia, the then-Republican-majority Senate refused to take up then-President Barack Obama’s nomination of Garland to the Supreme Court. He has since been nominated by President Joe Biden to become his attorney general.

Biden flirted with the idea of court-packing during the recent campaign but didn’t endorse it, saying he would create a national commission to look at a court system he described as “out of whack.” In October, Speaker of the House Nancy Pelosi (D-Calif.) said that because the U.S. population has increased over the past century and a half, more justices may be needed to sit on the Supreme Court.

In the lead-up to the November election, Democrats accused Republicans of a double-standard for moving expeditiously on Barrett’s nomination and vowed to pack the Supreme Court with additional justices in order to dilute the power of the court’s conservative-majority bloc, a move they argued would make it easier for big-government legislation favored by the political left to survive court scrutiny.

A group of GOP senators also co-sponsored Capito’s bill, S.J. Res 4. They are Sens. Marco Rubio (Fla.), Kevin Cramer (N.D.), Marsha Blackburn (Tenn.), Todd Young (Ind.), Mitt Romney (Utah), Mike Crapo (Idaho), Pat Toomey (Pa.), Thom Tillis (N.C.), Rob Portman (Ohio), John Cornyn (Texas), and Mike Braun (Ind.). The bill was introduced in the previous Congress on March 25, 2019, but lapsed.

Sen. Ted Cruz (R-Texas) and five other Senate Republicans introduced their own proposed constitutional amendment in October last year to prevent Democrats from packing the Supreme Court if Biden won the White House and Democrats recaptured the Senate. That proposed amendment simply stated: “The Supreme Court of the United States shall be composed of nine justices.”

“Make no mistake,” Cruz said at the time, “if Democrats win the election, they will end the filibuster and pack the Supreme Court, expanding the number of justices to advance their radical political agenda, entrenching their power for generations, and destroying the foundations of our democratic system.”

Capito explained her rationale for the new bill in a statement.

“A nine Justice court has worked for our country for more than 150 years,” she said.

“Increasing that number in a partisan effort to achieve a desired policy result is a never-ending proposition. Once this door is opened, respect for the Supreme Court as an independent arbiter of cases and controversies would fall away as it became another partisan branch of government.

“We should preserve our independent judiciary by closing the door to court-packing. Ratification of this amendment would stop the Democrats’ current desire to pack the courts. It would also remove the temptation for either party to attempt to restructure the court in a partisan way in the future.”

President Franklin D. Roosevelt, a Democrat, tried to pack the Supreme Court in the 1930s after it struck down as unconstitutional a series of his legislative initiatives, but lawmakers from his own party viewed the move as a political bridge too far when the public expressed its disapproval of court-packing. Court-packing legislation died, though the justices later dropped much of their opposition to Roosevelt’s government-enlarging New Deal legislation and upheld the various laws’ constitutionality.