by Paul Summers
At the September 29th Presidential Debate, Democrat nominee Joe Biden refused to answer a question about whether he would expand the size of the Supreme Court. It is more likely that he and VP nominee Kamala Harris will, if elected, seek to pack the Court so they can appoint a new majority of more liberal Justices.
If one party successfully expanded or shrunk the Court for political advantage, another might well do so in retaliation, undermining the independence of the Court and the rule of law. Such “Court packing” erodes the checks and balances of abuse of power by the other two branches.
Several times in our history prior to 1869, Congress expanded or shrunk the size of the Court for political advantage.
After 1869 a tradition grew up that the Court should remain free of such political interference. When FDR tried to expand the number of Justices in 1937, strong bipartisan opposition defeated his plan.
But now Democrats like former Attorney General Eric Holder, Senate Democrat Leader Chuck Schumer, and VP nominee Kamala Harris have begun to speak favorably about packing the Court. Kamala Harris said she was “absolutely open to it.” The Democrat Platform approved by Joe Biden urges “Court restructuring.”
To prevent a future Congress and President from manipulating the size of the Court for political advantage, a Constitutional Amendment is required. Our Constitution is silent on the number of Justices.
There is now a proposed “Keep Nine” Amendment to the U.S. Constitution which simply says:
“The Supreme Court of the United States shall be composed of nine Justices.”
It is backed by a bipartisan coalition of former State Attorneys General and Members of Congress. Polls show voters would support it by a more than 3-1 margin of 62%-18%.
The Keep Nine Amendment was introduced in the House as H.J. Res. 95 on September 23rd with the bipartisan sponsorship of Reps. Collin Peterson (D, MN) and Denver Riggleman (R, VA).
The Keep Nine Amendment was just endorsed by former Attorney General Ed Meese.
Unlike an earlier anti-Court packing Amendment sponsored by Sen. Rubio (R, FL) which only prohibits Congress from expanding the size of the Courts, the more recent and stronger Keep Nine Amendment would prohibit Congress from either increasing or decreasing the size of the Court.
The Keep Nine Amendment is the only anti-Court packing Amendment with bipartisan support.
Democrats or Republicans who won’t support “Keep Nine” have no excuse other than that they might one day want to change the size of the Court.
Because polls show that Court packing is very unpopular with voters, many Democrat candidates in close races are now saying they oppose expanding the size of the Supreme Court, knowing they could find excuses to change their position later, after the election.
So we must ask Democrats who say they oppose Court packing if they will support an Amendment to permanently ban it. We should ask Republicans as well.
A candidate who says YES to Keep Nine becomes part of a far more permanent firewall against Court packing. A candidate who says he or she opposes Court packing but won’t back an Amendment to ban it, may have credibility problems with swing voters.
We must increase the visibility of the Keep Nine Amendment now to increase the pressure on all candidates to answer questions about whether they will endorse it.
The easiest way to increase Keep Nine’s visibility is to persuade candidates, elected officials, and political leaders we know to endorse the Amendment.
Another way to increase Keep Nine’s visibility is to encourage those we know to text or contact the moderators of the remaining Vice Presidential and Presidential Debates. We can urge those moderators to ask both candidates if they will support the “Keep Nine” Amendment to preserve the current number of 9 Supreme Court Justices.
The easiest way to contact the Debate moderators is to go to www.KeepNine.org website and follow the link to the FreeRoots app that allows you to easily send a text to moderators and, eventually, to candidates.
And finally we should encourage everyone we know to ask the candidates for whom they can vote if those candidates will endorse the Keep Nine Amendment to preserve the current number of nine Supreme Court Justices.
Forcing candidates to take a stand on the Keep Nine Amendment to ban Court packing, and exposing those who refuse, could swing enough undecided voters to determine the winners in key Presidential states, Senate and House races.
The Keep Nine and the grassroots efforts to educate people about it could be one of the most important new factors shaping the last month of the 2020 campaign.
For more information about the Keep Nine Amendment and its supporters visit www.KeepNine.org.
If you would like to become more involved with or support this effort please contact Roman Buhler at 202-255-5000 or [email protected].org.
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*Paul Summers is a retired senior judge and former Attorney General of Tennessee. He is co-chair of the Coalition to Preserve the Independence of the Supreme Court.