Sen. Marco Rubio, R-Fla., introduced a constitutional amendment Monday which would preserve the Supreme Court at nine justices and prevent Democrats “packing the court,” as some 2020 candidates have proposed.
Rubio was joined by 11 other Republican senators in this effort: Sens. Marsha Blackburn, R-Tenn., Kevin Cramer, R-N.D., Shelley Moore Capito, R-W.Va., Mike Crapo, R-Idaho, Cindy Hyde-Smith, R-Miss., John Hoeven, R-N.D., Mike Lee, R-Utah, Mitt Romney, R-Utah, Ben Sasse, R-Neb., Pat Toomey, R-Penn., and Todd Young, R-Ind.
Rep. Mike Gallagher, R-Wisc., also introduced a matching constitutional amendment in the House of Representatives.
A senior aide to Rubio said that the Florida senator and 2016 presidential candidate had been considering this move since the fall of the 2018.
Amending the Constitution requires a two-thirds vote in the House and Senate, a hurdle that appears difficult. Republicans control the Senate, but Democrats took the House in November. The measure would also have to be ratified by three-fourths of the states.
Democratic candidates for president in 2020 are already talking about adding seats to the Supreme Court. White House hopefuls such as South Bend, Ind., Mayor Peter Buttigieg, former Rep. Beto O’Rourke, and Sens. Kamala Harris, Elizabeth Warren, Kirsten Gillibrand, and Cory Booker have all expressed an openness to expanding the number of Supreme Court seats.
Although the number of Supreme Court justices is not fixed in place by the Constitution, it has been set at nine by Congress for 150 years. The last real attempt at packing the court came from President Franklin D. Roosevelt in the 1930s and was met with strong opposition from both Democrats and Republicans.
Packing the Supreme Court began to gain traction among some Democrats following the confirmation of Justice Neil Gorsuch to Antonin Scalia’s seat in 2017, and the effort began to gain steam in the wake of Justice Brett Kavanaugh’s confirmation to Anthony Kennedy’s seat in 2018.
The text of the proposed constitutional amendment is straightforward and concise, reading:
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
This effort by Republicans comes in response to leading Democrats, including 2020 presidential candidates, expressing increased openness to packing the Supreme Court. The Republicans explained their reasoning, stressing what they saw as the importance of protecting the Supreme Court from further politicization.
Introducing the measure, Rubio said: “The Democrats’ court packing proposal represents the latest shortsighted effort to undermine America’s confidence in our institutions and our democracy. America’s institutions are far from perfect. But over the past two centuries, they have provided a framework for our nation to become the most dynamic, most vibrant, and most exceptional nation in all of human history. To prevent the delegitimizing of the Supreme Court, I am introducing a constitutional amendment to keep the number of seats at nine. Our institutions matter. Our Constitution matters. And we should fight to protect them.”
Gallagher said: “Few schemes are as dangerous to the rule of law as court packing. Americans rely on the Supreme Court to faithfully uphold the Constitution, and with Democrats’ partisan calls to increase the Court’s size gaining momentum, it is now more important than ever to preserve the legitimacy of the highest court in the land. I’m proud to join Sen. Rubio in introducing a Constitutional amendment protecting the integrity of the Supreme Court.”
Other senators issued statements in support.
Cramer: “I agree with what my Democratic colleagues have said for years: We need nine Supreme Court justices. Like the rest of the Democratic Party platform, this court-packing scheme is nothing more than a sloppy regurgitation of a 1930s failure. Just as President Franklin D. Roosevelt’s blatant disregard for presidential term limits necessitated a constitutional amendment then, efforts to revive his court-packing plan necessitate an amendment now.”
Lee: “The Supreme Court has functioned admirably for almost 150 years with nine justices. To change that number now, for the barest of partisan reasons, would fundamentally delegitimize the Court and throw our entire constitutional framework into question. This amendment is a good common-sense step to make sure neither side takes this drastic and dangerous step.”
Sasse: “Packing the Supreme Court would further politicize our judiciary system and erode public trust. There shouldn’t be red or blue jerseys on the Supreme Court, just nine black robes. Our constitutional system works best when judges don’t write laws, but instead faithfully apply the law to the facts of the case. Packing the court is an end run around Congress and the American public to turn judges into unelected super-legislators. That’s not the Supreme Court’s job, and that’s not what the American people want.”
Romney: “Society is only as strong as its institutions, and we should resist any effort to treat the Supreme Court like one of the elected branches. Recent court-packing proposals are transparent attempts to rig the Court based on political preferences. This constitutional amendment would ensure the integrity and independence of the Supreme Court for generations to come.”
Toomey: “Expanding the Supreme Court for partisan political reasons is a terrible idea. It would diminish the legitimacy of, and faith in, the institution as an independent branch of government. I hope my colleagues will join us in supporting this amendment to maintain the integrity of our nation’s highest court.”
Blackburn: “As we near the next presidential election, Democrats running against President Trump have suggested politicizing our nation’s highest court by packing it with liberal activist judges. In a time of intense polarization, it is more important than ever that our courts remain impartial, and that our Supreme Court Justices be strict constitutionalists who will follow the rule of law. There is no plausible reason to add more justices other than for Democrats to add judges who will legislate from the bench and further policies that failed to pass through Congress. The independence of our Supreme Court is paramount, and that is why this resolution is necessary.”
Young: “The Supreme Court is critical to our system of checks and balances, and proposals that call for expanding the Court to further partisan goals are antithetical to American values. Such efforts would irreparably harm our democracy and Americans’ faith in our institutions, and I support this effort to reaffirm our commitment to the norms that have served us well for the past 150 years.”
Hyde-Smith: “The latest scheme to pack the Supreme Court is part of a leftist ploy to radically remake our government. It’s an idea that seems to sprout during times of upheaval, lastly during the Great Depression. It was wisely stopped then, and it should be stopped now. This amendment, if passed by Congress and ratified by the states, would put the question to rest for good.”
Hoeven: “This legislation is about preserving the integrity of, as well as public confidence in, one of America’s essential institutions. Increasing the number of justices could jeopardize the independent nature of the Supreme Court. Instead, Congress should focus on working together to find common ground to address the challenges our nation faces.”
