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FreedomWorks’ Bill of the Month for December 2020: “Keep Nine” Amendment, S.J.Res. 76

FreedomWorks is proud to announce that our bill of the month for December 2020 is S.J.Res. 76, Sen. Ted Cruz’s (R-Texas) “Keep Nine” constitutional amendment to require that the Supreme Court be composed of nine justices.

Since 1869, the Supreme Court has been composed of nine justices. With one sentence, “[t]he Supreme Court of the United States shall be composed of nine justices,” this simple amendment proposed by Sen. Cruz would enshrine this number into the Constitution, creating certainty and further insulating the Supreme Court from hot-button, partisan rhetoric about court packing.

Currently, the number of justices on the Supreme Court is determined by Congress, which has meant that the number of justices on the court has changed over time, often for political or for policy purposes. Most recently, although the number has been left unchanged for more than 150 years now, partisan rhetoric about “court packing” has made a reappearance in discourse.

Prior to the 2020 presidential election, the question of whether either political party or candidate would seek to “pack” the Supreme Court became a highly controversial focus of attention. Because President Trump carried out his legitimate constitutional power to nominate a judge to fill the late Justice Ruth Bader Ginsburg’s seat on the Supreme Court, the left chose to threaten to pack the courts should they take control of the necessary branches of government in 2021.

Such a move would politicize the court to a massive degree and undermine public faith in the independence of the judiciary, which is already often in question. Even the late RBG herself expressed opposition to the idea of court packing. "Nine seems to be a good number. It's been that way for a long time," she said during an interview with National Public Radio in 2019. She continued, "I think it was a bad idea when President Franklin Roosevelt tried to pack the court."

Although FDR was unable to follow through on his infamous threat to add justices to the Supreme Court, he was able to wield that threat to cause the justices to radically change the way they interpreted limitations on a president’s power. It was a bad idea then, and it is a bad idea now.

Furthermore, well-educated elected Democrats have attempted to redefine what “court packing” means, even going so far as Senator Sheldon Whitehouse (D-R.I.) did on Twitter, accusing Republicans of “trying to pack the Court” just by confirming Amy Coney Barrett. Objectively, definitionally, confirming a nominee to a vacant seat is NOT court packing. Efforts to mislead the public in such gross ways are disdainful.

Fortunately, much of this politicization and partisanship that has engulfed discussions of the Supreme Court can be alleviated by a simple change to the Constitution, to enshrine what has worked well for a balanced Supreme Court for the past century and a half -- keeping the number of justices at nine. Senator Cruz has also introduced a bill, S. 4805, to create a point of order against any legislation that would modify the number of justices on the Supreme Court, which legislatively attacks the same issue at hand.

There are currently 14 cosponsors on each the constitutional amendment and the point of order legislation. There should be 99. If the Senate is serious about its role in advice and consent of judicial nominees, it should take a more active role in preserving the integrity of the courts. This includes recognizing when political whims have infiltrated the independent judiciary too far.

We thank Sen. Cruz for his leadership on this issue. As a constitutional lawyer and great legal mind, his perspective on this issue should be considered seriously. Congress must act to take court packing off the table by passing S.J.Res. 76 and sending it to the states to be ratified as the next amendment to the Constitution, setting the number of Supreme Court justices at nine.