GOP Senators Propose Constitutional Amendment to Block Packing Supreme Court

The U.S. flag flies at half-staff outside of the U.S. Supreme Court in memory of Justice Ruth Bader Ginsburg, in Washington on Sept. 19, 2020. Jose Luis Magana/AFP via Getty Images

A group of Republican senators has proposed a constitutional amendment to prevent Democratic lawmakers from expanding the Supreme Court if Joe Biden wins the White House and the Democrats take a majority in the Senate.

The provision, dubbed the “Keep Nine” amendment, would prevent Congress from expanding or subtracting justices from the Supreme Court.

“Make no mistake, if Democrats win the election, they will end the filibuster and pack the Supreme Court, expanding the number of justices to advance their radical political agenda, entrenching their power for generations, and destroying the foundations of our democratic system,” Sen. Ted Cruz (R-Texas) said in an Oct. 19 statement.

Cruz is joined by Sens. Thom Tillis (R-N.C.), Martha McSally (R-Ariz.), Roger Wicker (R-Miss.), Kelly Loeffler (R-Ga.), and Cindy Hyde-Smith (R-Miss.), who are co-sponsoring the plan to prevent any steps to pack the court.

This comes after Democrats from both chambers threatened to expand the high court if Senate Republicans move forward with filling a vacancy left by the death of liberal Associate Justice Ruth Bader Ginsburg.

The move to expand the court size, in efforts called “court-packing,” would be aimed to reshape the bench in favor of liberals or at the very least balance the ideological makeup of the bench if Democrats were to regain control of the Senate and White House in the next election. After Justices Neil Gorsuch and Brett Kavanaugh were confirmed to the bench, the court has been widely viewed to have a conservative lean, although Chief Justice John Roberts has occasionally voted with his liberal colleagues on a number of controversial issues.

Democrats and progressives fear that if President Donald Trump is successful in confirming his third nominee, Judge Amy Coney Barrett, the nation’s highest court could have a conservative lean for decades to come.

Barrett’s confirmation hearing ended on Oct. 15, with a vote to advance the nomination out of the Senate Judiciary Committee scheduled for Oct. 22. The full Senate is expected to take up the nomination the following day.

Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearing in Washington on Oct. 14, 2020. Anna Moneymaker-Pool/Getty Images

The proposal by Cruz and the other five senators also includes a legislative bill (pdf) that would create a “point of order against legislation modifying the number of Justices of the Supreme Court of the United States.” A point of order is a claim by a senator that a rule of the Senate is being violated. The bill aims to prevent “Democrats from unilaterally passing any court-packing legislation in the United States Senate,” the senators said.

Court-packing had previously been attempted and was proven to be unpopular. In 1937, President Franklin D. Roosevelt proposed legislation to expand the size of the Supreme Court to a maximum of 15 justices. Roosevelt’s motive was to shift the ideological balance of the court so that it would stop striking down his New Deal programs.

While the Supreme Court and the federal judiciary are set up by the Constitution, it also gives Congress the authority to pass laws to set up the judicial branch, including how many justices are on the top court.

The Constitution states, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The bar to amend the Constitution is very high as it requires two-thirds of the House and Senate to approve the text of the amendment and then requires three-quarters of the states to ratify the amendment. Given the current division in the country, such as effort is unlikely to succeed.

Last month, Reps. Denver Riggleman (R-Va.) and Collin Peterson (D-Minn.) proposed a similar amendment to permanently set the number of Supreme Court justices at nine. The congressmen said they were worried that partisan efforts to expand the court’s size could set off a battle that could further polarize the country.

Biden and vice presidential nominee Kamala Harris have repeatedly sought to avoid answering about whether they support proposals to pack the Supreme Court.