Public support for packing the Supreme Court is very low, yet progressives are mounting a campaign to add additional seats to skew the ideological balance of the court. Most people, if they think of court packing at all, assume that the idea died with Franklin D. Roosevelt when his own Democrat party panned the idea as too drastic. But recent rhetoric and published articles show that there is a movement afoot to expand the court as soon as progressives get enough votes in Congress.
There have been nine justices on the Supreme Court since 1869. Most people think the Constitution sets the number at nine. However, the Constitution grants Congress the authority to set the number of justices on the court, and bills were filed in both houses of Congress in 2021 to add four more seats.
Manipulating the court for partisan advantage is antithetical to the American system of checks and balances provided by an independent judicial branch. The Supreme Court keeps both the Executive Branch and the Legislative Branch accountable to Constitutional principles. One of the first things Hugo Chavez did when he took over Venezuela was to pack the Court so that it could not stop him from becoming a dictator. Without an independent Supreme Court, there is nothing to check the balance of power, and no guarantee that states can hold the federal government to the Constitution.
During the 2020 campaign, Joe Biden said voters didn’t deserve to know where he stood on court packing. Soon after his inauguration, President Biden appointed a commission to report on potential “reforms” to the Supreme Court. This Commission sidestepped the court packing issue, although progressive groups like Demand Justice were vocal in criticizing the Commission for its lack of support for court packing. The Commission’s report was essentially a ruse, intended to keep the issue of court packing in the background.
Public polling shows that the American public is very much against increasing the number of justices. Justice Ruth Bader Ginsberg said “Nine is a good number” and retiring Justice Breyer has also spoken against packing the court. Several years ago, a bipartisan group of former state attorneys general ― including Rufus Edmisten from North Carolina ― proposed “The Keep Nine Amendment” which simply says “The Supreme Court of the United States shall be composed of nine justices.”
In early 2021, House Joint Resolution 11 and Senate Joint Resolution 9 were filed to implement the amendment. To date, there are 178 cosponsors of the House Resolution including North Carolina Representatives Dan Bishop, Ted Budd, Madison Cawthorn, Virginia Foxx, Richard Hudson, Patrick McHenry, Greg Murphy and David Rouzer. The Senate Resolution has 21 total sponsors including Senators Richard Burr and Thom Tillis.
Last May, the North Carolina House of Representatives passed House Joint Resolution 286 calling on Congress to pass the Amendment and send it to the states for ratification. One of the most compelling debaters in favor of this Resolution was Wake County Representative, and retired judge Abe Jones, who pointed out the importance of keeping the Court independent of both the legislative and judicial branches. He noted that once one political party had packed the court, the other party, when it gained a majority, would do the same thing. The Court would become nothing but a rubber stamp for the party in power.
The results of the election in November may temporarily prevent the progressive left from increasing the size of the Supreme Court. The only way to permanently prevent court packing and protect the balance of powers Americans rely on is the Keep Nine Amendment. Ask candidates running for federal and state offices in 2022 where they stand on the Keep Nine Amendment. A candidate who will not answer this question wants to keep the option open to pack the court.
Martha Jenkins lives in Orange County