AG Derek Schmidt Backs Constitutional Amendment to Ban Court Packing

Courtroom

TOPEKA – (October 19, 2020) – A proposed amendment to the federal Constitution to permanently set the number of justices on the U.S. Supreme Court at nine is “simple and self-explanatory” and is needed to prevent the politics of the day from threatening the independence of the judiciary, Kansas Attorney General Derek Schmidt said.

Schmidt on Friday became an early backer of the so-called “Keep Nine” amendment, a bipartisan proposal introduced last month in the U.S. House of Representatives by Collin Peterson, D-Minn., and Denver Riggleman, R-Va. In a letter to the two sponsors, Schmidt offered support for their proposal, which is intended to preserve the integrity and independence of the U.S. Supreme Court. 

Under current law, the number of justices is set by federal statute. From the 1790s until just after the Civil War, the number of justices fluctuated between six and 10; Congress set the present nine-member size of the court in 1869. However, twice since then political critics unhappy with the Supreme Court’s rulings have called for adding new justices in order to “pack” the court with new members who they think more likely to rule as they prefer. The first court-packing proposal was advanced by President Franklin Delano Roosevelt in 1937, but was defeated in Congress. Currently, some opponents of Judge Amy Coney Barrett have called for packing the Supreme Court with new members if Judge Barrett is confirmed as a Supreme Court Justice, Joe Biden is elected president, and Democrats gain a majority in the United States Senate.  

The proposed amendment would add 13 words to the U.S. Constitution: “The Supreme Court of the United States shall be composed of nine Justices.”

“The need could not be greater,” Schmidt wrote. “Twice in the past century – once in 1937 and again today – cries to ‘pack the court’ by adding more justices for the purpose of diluting the influence of those already seated have risen to the fore of our nation’s public discussion. The intent and effect of those cries have been to challenge the Supreme Court’s independence in exercising judgment in cases and controversies before it. For the past 150 years, no other justification or need for altering the number of justices has gained attention, demonstrating that fixing the number of justices at nine, as is currently the case, is administratively and legally suitable. As the late Justice Ruth Bader Ginsburg famously said just over a year ago, ‘Nine seems to be a good number.’”

Schmidt, who has personally argued three cases for Kansas before the U.S. Supreme Court, said the Constitution already provides mechanisms for public and political considerations to shape the composition of the court over time while shielding the court from short-term political passions. In particular, voters can change the composition of the court through election of a president who nominates justices when vacancies occur and U.S. senators who confirm the selection. The Constitution also gives federal judges, including Supreme Court justices, life tenure to insulate them from the ebb-and-flow of politics and political pressures.

The proposed Keep Nine amendment would reinforce these existing constitutional protections for judicial independence, Schmidt said.

“By removing from Congress the ability to pack the court with additional justices in response to political pressures – regardless of whether those pressures come from the political left, the political right, or elsewhere – your proposed amendment would reinforce our long and proud American tradition of an independent judiciary that, as Alexander Hamilton put it in Federalist 78, ‘ha[s] neither FORCE nor WILL, but merely judgment,’” Schmidt wrote. “The passions of the moment must not be allowed to undermine the independence of our Supreme Court.”

A federal constitutional amendment must receive approval from two-thirds of the members of the U.S. House and Senate to be formally proposed, then the approval of three-fourths of the state legislatures to be ratified.

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