Bipartisan ‘Keep Nine’ Amendment a Supreme-ly Good Idea

To permanently preserve the independence of the Court from a future President and Congress that might wish to manipulate it, a Constitutional Amendment is required.

AP/Steve Helber
The Supreme Court in June 2022. AP/Steve Helber

We have challenges and disagreements daily in our country, but there is one issue around which a broad bipartisan majority of Americans can agree: “The Supreme Court of the United States shall be composed of nine Justices.”

That is the language of the proposed “Keep Nine” Amendment to America’s Constitution. It would permanently preserve the independence of the Supreme Court. Members of Congress, state and federal officials, and candidates in both parties would be wise to endorse it.

The Constitution is silent on the size of the Supreme Court. Without an Amendment defining the number of Justices, a future Congress and President could change that number for political advantage. This strategy is known as “court packing.”

Recent polling shows that by a margin of more than two to one, voters would support the “Keep Nine” Amendment. Support extends across party lines. More Republicans, more Democrats, and more Independents would favor it than oppose it.

There have been suggestions that a President with a majority in Congress might do that which FDR famously attempted, but failed, when he tried to pack the Court. FDR sought to increase the number of Supreme Court Justices and then fill those new positions with ideological allies.

FDR’s plan was rejected by the American people and Congress. It divided his allies, and emboldened his opponents.

“Court packing” was then and would be today a disaster for the nation and any party that embraced it. If one party packed the Court, another party with a new majority would retaliate by trying to pack the Court again. The result would undermine both the independence of the Court and the rule of law itself. A Supreme Court with nine justices has worked well since 1869.

Voters understand that packing the Court would weaken the checks and balances on abuse of power by a future President or Congress. An independent Supreme Court is vital for the future of democracy in our Constitutional Republic.

Candidates in close races who were perceived as receptive to court packing could lose and cost their party the chance of winning control of the White House or Congress.

To say, as a candidate, that you are against court packing is not enough. Stated opposition to court packing without support for a Constitutional Amendment to ban it will not

permanently protect the nation from bitter and divisive consequences of a possible future packing attempt.

Political positions, the occupant of the White House, and majorities in Congress can change over time. To permanently preserve the independence of the Court from a future President and Congress that might wish to manipulate it, a Constitutional Amendment is required.

Some might say that amending the Constitution is too difficult. But America recently celebrated the 100th Anniversary of the adoption of the 19th Amendment, guaranteeing women the right to vote. The Amendment was proposed by Congress and ratified by the states because of overwhelming pressure from voters and political leaders around the nation.

In the same way that the 22nd Amendment codified the longstanding two-term limit for Presidents, a new 28th Amendment would permanently preserve the current number of nine Supreme Court Justices. Justice Ruth Bader Ginsburg, who opposed Court packing, had called nine “a good number.”

In 2019 a bipartisan, nonpartisan group of former State Attorneys General formed the Coalition to Preserve the Independence of the United States Supreme Court. The purpose: support the Keep Nine Amendment to have it proposed by a 2/3 majority in the U. S. House and Senate and then ratified by 3/4 of the states. 

There now have been “Keep Nine” Amendment resolutions introduced in both Houses of Congress and backed by more than 200 Members of Congress.

The “Keep Nine” Amendment will ensure the Supreme Court remains an independent guardian of our rights and freedoms for future generations.

The proposed amendment offers an opportunity for American leaders, despite their deep differences on many issues, to come together. We can all be unifiers to protect the independence of one of the key institutions that protects our democracy.

The New York Sun

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