In the months since the Senate confirmed Amy Coney Barrett to the Supreme Court, many of my Democratic colleagues have come out in support of court packing, by which they would expand the Supreme Court beyond its long-established size of nine justices. They argue that this drastic step is necessary to “depoliticize” the court and “strengthen its independence.” In reality, adding justices to the bench solely to make our nation’s highest court more sympathetic to one party’s priorities than to the Constitution would do exactly the opposite.
I recently became a co-sponsor of Sen. Marco Rubio’s resolution proposing a constitutional amendment that would take this off the table. Our amendment is simple. It reads: “The Supreme Court of the United States shall be composed of not more than nine justices.” It also gives Congress the power to enforce this through law.
That’s it — just two sentences. But these two short sentences would do wonders for national unity.
The Supreme Court’s size hasn’t changed since 1869. Fixing the number of justices at nine would keep this crucial institution above the push and pull of partisan politics, just as our Founding Fathers intended when they made the judiciary its own branch.
And as President Joe Biden and other prominent Democrats have argued in the past, packing the Supreme Court would reduce the judiciary to an extension of the legislative and executive branches, not the separate and coequal third branch it was designed to be. On the other hand, ratifying our resolution as the 28th Amendment to the U.S. Constitution would guarantee our court system’s independence.
Beyond the damage it would do to our country, court packing is a losing issue. Only 34% of registered voters favor increasing the size of the Supreme Court, according to a poll the Washington Examiner and YouGov conducted in October. President Donald Trump nominated and the Senate confirmed Justices Neil Gorsuch, Brett Kavanaugh and Barrett under the same rules as President Barack Obama and every other president and Senate in American history. Most Americans agree: One party shouldn’t be able to change those rules based on the political winds of the moment.
Even though there have been nine justices on the Supreme Court for more than 150 years, this isn’t the first time that our nation’s highest court has been put in danger. After the Supreme Court found several parts of Franklin Roosevelt’s New Deal to be unconstitutional in the 1930s, the president threatened to appoint “assistant justices” for every justice over age 70 who refused to retire, which would have expanded the court to 15 and guaranteed President Roosevelt a liberal majority.
Thankfully, the Senate voted against his plan by a margin of 70-20, with most of the Senate’s 76 Democrats voting against the leader of their own party. At the time, the Senate Judiciary Committee declared that the move to expand the court was in “direct violation of the spirit of the American Constitution.”
All presidents have the authority to nominate new justices to the Supreme Court if a vacancy happens during their term. Presidents closely review the judicial philosophies of nominees to ensure they reflect how they believe a justice should weigh past judicial decisions when deciding a case, along with the impact their decisions may have on present-day society. That process has existed in many, if not all, administrations.
In my view, this issue comes down to a single question: Should our nation’s justice system be fundamentally reformed by whichever party happens to be in power? I do not think so.
If ratified, this amendment would preserve the independence of both the Supreme Court and the entire judiciary for decades to come.