A new group called “Keep 9 Amendment” has been formed with the goal of proposing an amendment to the U.S. Constitution that would ban left-wing attempts to add more justices to the U.S. Supreme Court.
Disappointment on the left with recent Supreme Court decisions, such as the Dobbs decision that overturned Roe v. Wade, has spurred a movement to add more justices to the Supreme Court. Some have proposed imposing term limits on federal judges by a simple vote of Congress, even though the Constitution states that federal judges are appointed for life.
Alexander Hamilton reassured those who expressed concern about the creation of the Supreme Court at the time that it was the “least dangerous branch” of the federal government, but over the past few generations the Court has become exactly what some in Hamilton's time feared: a political institution — a “super-legislature” — carrying out many of the left's more radical policies, such as the 1973 Roe v. Wade decision.
The proposed “Keep 9” amendment is surprisingly simple: “The Supreme Court of the United States shall consist of nine justices.” Introduced by Senator Ted Cruz (R-Texas), the amendment would require a two-thirds vote in both houses of Congress, followed by approval by three-quarters of the states. More than 200 members of Congress and 800 state legislators support the amendment.
In contrast, more than 60 Democrats in Congress, including former House Speaker Nancy Pelosi, current House Minority Leader Hakeem Jeffries, and Senate Majority Leader Chuck Schumer, support legislation to expand the size of the Supreme Court. Planned Parenthood, the National Education Association, and the United Auto Workers have publicly supported adding more justices.
Democratic presidential candidate Vice President Kamala Harris said in 2019 that she was “absolutely open” to adding seats to the Supreme Court, but, like many other issues, she has been ambivalent recently. Surprisingly, her campaign has hired Brian Fallon, leader of Demand Justice, a group that supports adding seats to the Supreme Court, as a spokesman for her campaign.
In the current Congress, not a single Democrat supports an effort to amend the Constitution to raise that number to nine.
The Democratic call to add more justices to the court is not the first attempt to increase the number of justices on the Supreme Court, which has been an obstacle to left-leaning legislation. In 1937, President Franklin Roosevelt, who had been overwhelmingly re-elected the previous year, viewed the U.S. Constitution and the Supreme Court as obstacles to his proposals to expand the power of the federal government.
President Franklin Roosevelt asked Congress to add six more justices to the Supreme Court, bringing the number of justices to 15. This would allow him to appoint the six new justices and eliminate any opposition from the justices to his left-leaning agenda.
Roosevelt called the Democratic Congressional leaders to the White House and instructed them to carry out a plan to add to the Supreme Court. He did not even consult Vice President John Nance Garner (D. of Texas). As the senators were leaving the White House, one of them, Chairman of the House Judiciary Committee, Hutton Sumners of Texas, said to his colleagues, “Hey, here's my bet.” He said he did not support the plan to add to the Supreme Court. The plan never made it to the House of Representatives. The U.S. Senate, with Democrats outnumbering Republicans 76-16, voted 70-20 to reject Roosevelt's plan to seize power.
There was never another serious effort to staff the Supreme Court. But things are different now. In Roosevelt's time, there were still many Democrats who respected the separation of powers that the Founders wrote into the Constitution. Today, few people truly believe in following the Constitution.
The Framers of the Constitution did not specify the number of justices in the Constitution, and the Supreme Court was originally composed of five justices. Since 1869, it has been set at nine. James Madison and the other Framers never envisioned that the executive branch would seek additional justices to advance an unconstitutional legislative agenda.
Supporters of the Keep 9 amendment believe the Framers created the amendment process to correct unforeseen “flaws” in the Constitution. They are not proposing a constitutional convention to consider the amendment, but rather support its passage in the House and Senate, as they have done with all 27 current amendments to the Constitution, including the Bill of Rights.
Still, some have urged caution, arguing that the effort could be used by conveners (those who are pushing for a convention to propose various amendments to “curb” the power of the federal government). Many Americans, including Barry Goldwater, Ronald Reagan, Phyllis Schlafly, and Antonin Scalia, are opposed to such a convention, fearing that it could be used by the left to significantly change or water down the current Constitution. Scalia has even gone so far as to say that the 21st century is a bad century to hold such a convention because we no longer have figures like George Washington, John Adams, or James Madison.
One thing is certain: the reason the left wants to add to the Supreme Court is because they don't like recent decisions. If the Supreme Court had always ruled in favor of the left, as it has done for many years, there would be no movement to add to the Supreme Court. In fact, if President Trump won the White House and the Republicans won the Senate, and we added more justices to the Supreme Court, all nominated by President Trump and confirmed by a Republican Senate, Democrats would strongly oppose such a move.
To be honest, it is unlikely that such an amendment would receive a two-thirds vote in both houses of Congress, but it might be interesting to get lawmakers on the record about the issue of adding judges. For now, the easier solution is to elect people to Congress who support the U.S. Constitution and defeat the current members of Congress who want to add to the Supreme Court in order to circumvent the Constitution.
Steve Bias is a university lecturer in history and political science and teaches constitutional law at Randall University in Moore, Oklahoma. He can be reached at (email address protected).
