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The legitimacy of the Supreme Court relies on keeping it as depoliticized as possible. A Keep Nine Amendment would help keep an already over-politicized court from losing its independence altogether.
However, Stephen Breyer best articulated what the threat of court-packing means for the future of our country when he said that the Supreme Court’s “authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that matter of perception, further eroding that trust.”
Despite these warnings, some Democrats have pushed forward with calls to expand the number of justices on the court. In just the past few months, Rep. Adam Schiff, Sen. Ed Markey, Sen. Tina Smith, Rep. Rashida Tlaib, and various other figures on the left have openly advocated for court-packing.
But what does the threat of “court-packing” really mean? What long-term harm could come from expanding the number of justices?
For one, it would set a precedent that would lead to an ever-expanding Supreme Court. Moreover, as Justice Breyer pointed out, it would undermine institutional integrity and public trust in the judicial system.
However, we do not need to merely speculate. There have been multiple instances of court-packing or attempted court-packing in U.S. history. Both political parties have been guilty of it at one point, but I would like to focus on perhaps the most severe case.
In February 1937, President Franklin D. Roosevelt announced his intention to add as many as six additional justices to the Supreme Court. He argued that the judiciary should “function in accord with modern necessities.”
Roosevelt’s Attorney General said that the goal of the plan was to “give to the courts men of fresh outlook who will refrain from infringing upon the powers of Congress.” In other words, the president desired justices who would not provide a check on other branches of government.
Roosevelt’s core frustration with the judiciary arose after a series of decisions against his “New Deal” policies. At the time, the court was divided between three liberal, four conservative, and two swing justices. Roosevelt hoped to shift this balance in his favor.
While the plan failed to gain traction in Congress, the damage had already been done. In late March, the court upheld a minimum wage law that was nearly identical to laws it had previously struck down in a 5-4 decison. In the following months, multiple cases dealing with New Deal legislation would be decided in the government’s favor, while a conservative justice announced his intention to retire.
Justice Owen Roberts, the swing justice with the most pronounced change in voting patterns, called his shift “the switch in time that saved nine." But this is not really true: the court’s decisions were no longer derived from the rule of law, they instead came from a state of fear. While Roosevelt did not succeed in his court-packing scheme, he still came out on top. By the end of his presidency, eight of the nine justices on the court had been appointed by him.
This episode was one of the darkest periods of our nation’s history, as the separation of powers was fundamentally undermined. The moral of this story, however, is that the threat of packing the court is just as dangerous as the act of expanding the number of justices.
However, it is perfectly legal; the U.S. Constitution provides no guidance on how many justices should sit on the court.
So what is the solution to this problem?
A constitutional amendment. The Keep Nine Amendment, to be precise. At just thirteen words long, it would be the shortest amendment to the Constitution: “The Supreme Court of the United States shall be composed of nine justices.”
Spearheading the effort to save the Supreme Court is the Keep Nine Coalition, which was formed by a bipartisan group of fifteen former state Attorneys General. The Keep Nine Amendment has been endorsed by over 200 current and former members of Congress, again cutting across party lines. However, while this could be an excellent point of bipartisan unity, the current Keep Nine bills do not have a single Democratic cosponsor.
In fact, many on the left have only ramped up efforts to subvert the nation’s highest court. For example, on July 20 of this year, Senator Ted Cruz proposed an amendment to add the Keep Nine language to the so-called “Supreme Court Ethics Act.” In that meeting, Democratic Senator Sheldon Whitehouse said, “It’s impossible to know” whether we should increase the number of Justices because “we don't know yet what the whole story here is.”
Every Democratic member of the Senate Judiciary Committee voted against Senator Cruz’s amendment, while every Republican voted in favor of it. The “Supreme Court Ethics” guise from the left is not a virtuous attempt to restore the court’s integrity, but rather, another malicious effort to undermine the court’s legitimacy.
Going back to the historical example, Franklin Roosevelt was not frustrated with the Supreme Court, he was frustrated with the Constitution itself. Packing the Supreme Court would delegitimize the judiciary, but more alarmingly, it would remove the final constraint on government power.
If we do not have an independent judiciary, we do not have a Constitution. The words on that two-century-old parchment will mean nothing without an institution dedicated to preserving them. Protecting the independence of the Supreme Court is singularly the most important issue of the 2024 election because defending the court is defending the Constitution. This is why we need the Keep Nine Amendment.
Benjamin Rothove is an undergraduate at University of Wisconsin-Madison, where he studies Economics. He is the Chairman of UW-Madison Students for DeSantis and Wisconsin Students for DeSantis. He is the Vice Chair of Young Leaders for Keep Nine. @BenjaminRothove