Are Nine Justices on the Supreme Court the Right Number?

            The liberty principle for this Freedom Friday concerns the frequent threat from Democrats to pack the Supreme Court by adding more justices. I believe that the first attempt to pack the court took place in the late 1930s. The United States was in the middle of the Great Depression, and President Franklin D. Roosevelt was pushing legislation to find some way to help Americans.

            Problems for Roosevelt came when the Supreme Court struck down many of the bills for the New Deal. The actions started in May 1935 according to Dr. David B. Woolner. “Over the next 13 months, the court struck down more pieces of legislation than at any other time in U.S. history.” I can see why Roosevelt would get frustrated with the justices.

            Roosevelt decided to pack the court, and Judicial Procedures Reform Bill of 1937 was prepared. The bill would allow Roosevelt to “appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.” That sounds like a lot of justices to me! Even Democrats opposed the deal. 

            We can be grateful that the bill did not pass Congress and become law. However, the threat to pack the court arises from time to time, particularly when Democrats get backed into a corner. The latest threat came when Ruth Bader Ginsburg died. President Donald Trump declared that he would nominate a replacement to take her seat, and Senate Majority Leader Mitch McConnell pledged to bring the nomination to a vote in the Senate.

            This threat did not sit well with a “bipartisan group dominated by former state attorneys general” who are pushing back against it. The group has grown to 27 members with former members of Congress and former governors. Fred Lucas reported at The Daily Signal that the group is formally known as the Coalition to Preserve the Independence of the Supreme Court, but the group calls itself “Keep Nine” as a “short reference to the nine justices on the high court.” Former Tennessee Attorney General Paul Summers, an independent, said: 

We feel that court packing, adding or for that matter subtracting justices for political advantage, is wrong. It would denigrate the rule of law [in favor of] the rule of men. It undermines the independence of the Supreme Court.

Democrats are still angry that McConnell refused to hold a vote on Barack Obama’s nomination of Merrick Garland. His reason was that Obama was a Democrat and the Senate majority was Republican. It was a smart move on the part of McConnell. However, the Democrats were angry enough that they turned the Brett Kavanaugh hearing into a circus.

Now Democrats are demanding that McConnell abide by the same “rule” of not confirming a justice until after the presidential election. They refuse to accept the fact that the White House and the Senate are held by the same party in 2020, which was not the case in 2016. So, they are threatening to pack the court if confirmation hearings are held. They know that they cannot stop the confirmation, so they make threats of what they will do when they are back in power.

The “Keep Nine” coalition is promoting an amendment to the Constitution that would have only thirteen words: “The Supreme Court of the United States shall be composed of nine Justices.” Noting that the Constitution has been amended only 27 times in the history of the nation, Summers admitted that the amendment process would be difficult.  

It will be hard to pass a constitutional amendment, but it will be harder on the country to denigrate a separate and equal branch of government. If one party packs the court, then another party will win power and pack the court, and you could have 27 justices or more.

The coalition believes that a constitutional amendment is the way to stop threats to pack the court. I believe that an amendment would be worth the battle to get it passed and ratified.

Just think, we could be finished with threats to pack the court with just thirteen words!