The Supreme Court has long been in the crosshairs of those who want to degrade our Constitutional values. Some Democrats have advocated expanding the Court in response to recent judicial outcomes they oppose. Yet, nine Justices have provided stability to the Court for over 150 years. Now, it is up to members of Congress to solidify that number to maintain the Supreme Court’s independence and promote public confidence in the judiciary.
Article III of the U.S. Constitution established the role of the Supreme Court; however, it does not explicitly set the number of justices who can serve on the Court. In 1789, the Supreme Court was created with six justices. That number changed throughout the years. The number even reached ten justices during the Civil War. Finally, in 1869, the Judiciary Act set the number of justices at nine, which corresponded to the nine circuit courts at the time.
Several decades later, Franklin D. Roosevelt attempted to wield ultimate control of the judiciary. Not only did he greatly expand the federal government’s reach into Americans’ lives, but he urged Congress to pass the Judicial Procedures Reform Bill of 1937 which would have added six more justices to the Supreme Court. He wanted to hand-pick a court that would greenlight his New Deal reforms. The opposition to this attempt was great, even from his allies. The Senate Judiciary Committee framed the legislation as “needless, futile, and utterly dangerous.”
Ultimately, the court relented, upholding the National Labor Relations Act. It was derided as the “switch in time that saved nine,” and the court-packing plan was abandoned. Today, scholars across the political spectrum regard it as a blunder. The political impact of FDR’s plan was catastrophic for the Democrats, who lost eight Senate seats, 81 House seats, and twelve governors in the 1938 elections.
The late Justice Ruth Bader Ginsburg, whose views often dissented from our own, referenced FDR’s actions when forming her own opinion on the number of justices who should serve in the Supreme Court. She stated, “I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court. If anything would make the court appear more partisan, it would be that. So, I am not at all in favor of that solution. Nine seems to be a good number. It’s been that way for a long time.”
If only her greatest supporters agreed! Democrats cannot resist entertaining the idea of court packing after they have suffered from what they deem a “losing streak”. During President Trump’s first term, he was fortunate to be able to fill three Supreme Court vacancies with Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. By appointing justices with a more originalist/textualist approach to the law, the Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. This 6-3 decision gave the power of regulating abortion back to the American people via their elected representatives. The Dobbs case inflamed pro-abortion politicians and activists. Instead of blaming the flaws of Roe, which even Justice Ginsburg acknowledged, they turned their ire toward the six justices. Their solution is to harass seated judges and to pack the Supreme Court.
Democrat political strategist James Carville recently said the quiet part out loud. On a left-leaning podcast, he suggested packing the Court: “If the Democrats win the presidency and both houses of Congress, I think on day one, they should make Puerto Rico [and] D.C. a state, and they should expand the Supreme Court to 13. [Expletive]. Eat our dust.” Carville then went on to urge Democrats to keep this plan under wraps by not talking about it in campaigns — just make it happen when they are in power again.
Eagle Forum knows all too well the implications of court packing. If Carville’s plan succeeds, the Equal Rights Amendment will be one of the first to be rolled out. ERA would enshrine a host of problems, including creating a Constitutional right to abortion, transgender rights, sex-neutral spaces, and the forced military drafting of women. Parental rights could vanish, giving the bureaucracy more control over the education of children. We could even see personal property and gun rights vanish.
Kamala Harris played by Carville’s rules during her 2024 presidential campaign, but she couldn’t keep it in any longer after her loss. Last month, she suggested expanding the Court by “fighting fire with fire.” Pete Buttigieg has a 15-member Supreme Court Justice plan. It appears presidential hopefuls cannot resist a court-packing scheme like Gollum’s obsession with the One Ring in The Hobbit.
With the fate of the Republican majorities looking unclear in the November elections, House and Senate Republicans are finally forwarding a constitutional amendment to protect the number of justices. In May, the House Judiciary Committee held a hearing titled “Court Packing: A Threat to the Supreme Court’s Legitimacy,” where Republicans laid out the dangers of weakening the Court and highlighted previous Democratic opposition to court packing by Justice Steven Breyer and President Joe Biden.
The House Judiciary Committee has marked up Rep. Andy Biggs’s H.J. Res. 1 (Keep 9 Amendment), which would set the number of Supreme Court Justices at nine. For this language to be placed into the Constitution, two-thirds of the House and Senate must agree, and three-fourths of state legislatures must ratify the amendment. Sen. Ted Cruz (R-TX) has introduced the companion bill in the Senate (S.J. Res. 16).
For a ruling party to pack a nation’s highest court would be a national embarrassment, even in less-developed countries. If Democrats manage this scheme, the U.S. would join the ranks of Venezuela in 2004 and Argentina in 1989. That any Democrats are seriously considering a plan to pack the courts is a sad development for their party. The American judicial system is the envy of the world precisely because of its independence.
A renowned historian of the American Revolution, Gordon Wood, has described it as the creation of judges who are “agents of the sovereign people somehow equal in authority with the legislators and executives.” Justices have, therefore, frequently ruled against the presidents and parties that put them on the court. Some of the most prominent, politically sensitive Supreme Court cases in history have involved justices ruling against the parties that put them in power, such as U.S. v. Nixon.
Court-packing weakens judicial independence by making judges’ influence contingent on ruling in ways that satisfy the party in power. If political leaders can simply add seats whenever courts issue unfavorable decisions, judges may face pressure to consider political consequences rather than interpret the law impartially. Despite President Trump’s incredible luck to nominate three justices to the Supreme Court, the Court’s decisions have not always aligned with his preferred outcomes. For example, the Supreme Court decided earlier this year that the President could not use the International Emergency Economic Powers Act to implement tariffs on another country. Limiting the Court to nine justices insulates those seated from the political whims of leaders and current culture allowing them to rule according to the steadfast Constitution.
In addition to court packing, there are other ways to undermine judicial independence. One such idea is term limits for Supreme Court justices. Article III of the Constitution provides life tenure for federal judges, but some term-limit proposals would try to avoid a constitutional violation by merely mandating that justices take “senior” status after eighteen years. Senior justices would continue to be on the federal payroll but only hear cases that the Chief Justice assigns to them, would give the Chief Justice immense power to sway rulings.
Every state’s highest court has between five and nine justices. Similar courts in other countries like Canada, Germany, and France have nine justices. The more justices on a high court, the more likely the court is to be a pawn of the ruling party. As a result of its 2004 packing, the Venezuelan high court grew to 36 Justices, leading to the sad spectacle of the Justices chanting slogans of support for President Hugo Chavez in 2006.
Democrats argue for packing the court that Republicans “stole” two seats by appointing Justices Gorsuch and Barrett. Nothing about those appointments required changing any law. It is telling that the Democrats’ preferred solution is to add four new justices to address the supposed unfairness of the ordinary confirmation of two justices. By the most amazing coincidence, there would then be seven Democrat-appointed justices and six Republican-appointed justices instead of the current 6-3 breakdown.
The Democrats’ true justification is obvious: they want to control the court so it will rule how they want. This venal motive is leading Democrats astray. Once the court has been politicized, there is no limit to how many times it can be packed. It only has to happen once to destroy the court’s reputation for independence.
Eagle Forum has joined the Keep Nine Coalition to urge lawmakers to support a constitutional amendment to secure the Supreme Court at nine justices. The director of the coalition, Roman Buhler, told The Federalist, “We’ve survived for 250 years with a court that has been able to say no to politicians when it really had to. Not every time, but enough of the time to make an important difference. We have three branches of government. If we lose that, [it will be like] trying to ride a tricycle with two wheels. It doesn’t work.”
To learn more about efforts to stop court packing and the Keep Nine Amendment, visit keepnineonthesupremecourt.org. Sen. Mike Lee (R-UT) has also authored a book titled Saving Nine, which lays out the history, strategies of the Left, and how to save the Court’s integrity.