The Supreme Court is in grave threat of court-packing. President Biden recently proposed a set of radical judicial reform measures. Additionally, Kamala Harris was receptive to a court-packing scenario if the Democrats had secured control of Congress and the presidency in the November election.
This marks the first serious consideration of court-packing since Franklin Delano Roosevelt’s attempt in 1937. To preserve America’s judiciary from this overreach, Congress should adopt the Keep Nine Amendment.
The Keep Nine Amendment consists of 13 words: “The Supreme Court of the United States Shall be composed of nine Justices.” It offers a solution to the looming threat of court expansion.
The Keep Nine Amendment not only safeguards against court-packing but also aligns with similar constitutional limitations on the other branches. In the executive branch, the 22nd Amendment was adopted to prevent any president from serving more than two terms.
The Keep Nine Amendment is for the Supreme Court what the 22nd Amendment was for the presidency.
Congress also possesses a constitutional safeguard akin to Keep Nine. According to Article I, Section 2, Clause 3 — the Enumeration Clause — the House of Representatives is apportioned based on state population. This provision ensures that there be no more than one representative per 30,000 citizens in a legislative district.
Similarly, the Keep Nine Amendment provides a constitutional threshold against “political overrepresentation” in the court by capping the size at nine justices.
Keep Nine offers to safeguard the court’s size in line with pre-existing safeguards in the political branches. Just as the president is term-limited and House districts are population-limited, so too should the number of Supreme Court justices be limited to nine.
Looking back, we find the Supreme Court underwent seven periods of expansion and reduction. Each instance of court expansion corresponded with the inclusion of new states to the union or during a relative period of growth. This, in turn, expanded the size of the American legal system by providing newly formed states access to the judicial circuit.
Such expansionism served a clear purpose as jurisdictional boundaries enlarged and new states were established in 1807, 1837 and 1863. This justification for expanding the court is a far cry from the political notions of court-packing being floated today.
Today’s calls ignore this reality. Congress cannot introduce new justices that are untethered to the entry of new states. Proponents of court-packing seek to enlarge the Supreme Court in the absence of a reciprocal expansion in domestic landmass or state formation.
Expanding the size of the court without any historical or legal justification is akin to rogue political opportunism. We’ve seen such opportunism play out in the four instances where the court’s size was reduced for reasons not having to do with new judicial circuits or states.
Judicial independence represents one of the great hallmarks of Western civilization. America’s judiciary is exceptional for providing a constitutionally protected and politically independent forum of judges, unbeholden to any party or faction.
However, such independence has its limits, which hinge on the current size of the court.
Keeping the size of the court to nine justices preserves judicial independence by denying any political faction in Congress or the president from tipping the court perpetually in their favor. This accords with one of the three forms of judicial independence, namely, “political insularity.”
Political insularity requires justices to “be independent from popularly controlled government institutions” and is “essential for the pursuit of justice,” since courts are expected to render the decision that best upholds the law, not out of partisanship. Such insularity is essential for upholding the constitutional balance of powers doctrine.
The Framers intended the Supreme Court to operate as the constitutional equalizer, checking abuses to the law by Congress and the president. The court will lose this independent neutrality if court-packing becomes a reality.
