U.S. Representative Mike Gallagher (R-WI-08) re-introduced a constitutional amendment that would prevent court packing by locking in the size of the U.S. Supreme Court at the long-standing nine justices.
U.S. Senator Marco Rubio (R-FL) originally proposed the amendment in 2019, and it was re-introduced in 2021 after President Joe Biden announced the creation of a commission to explore expanding the nine-member court and other “reforms.”
While Gallagher’s latest effort stands little chance of moving through a divided federal government, the proposed amendment aims to check a movement by the Left that even Biden said he doesn’t support.
“Radical progressives want to delegitimize the Supreme Court by packing it with liberal justices. This is a recipe for chaos, an idea so crazy that President Biden’s own Supreme Court commission dismissed it,” Gallagher said in a statement.
The U.S. Supreme Court has been represented by nine justices since 1869. While the Constitution does not specify a number, supporters of the long-held precedent argue that politically loading the Court would do irreparable harm to the U.S. system of Justice.
In proposing the original constitutional amendment in 2019, Rubio acknowledged there is “nothing magical about the number nine.”
“It is not inherently right just because the number of seats on the Supreme Court remains unchanged since 1869. But there is something inherently good and important about preventing the further destabilization of essential institutions,” Rubio wrote in an op-ed for Fox News in March 2019, long before Biden was the Democratic Party’s 2020 nominee for president.
Democrats like U.S. Representative Alexandria Ocasio-Cortez (D-NY-14) have backed a bill that would pack the high court. The Judiciary Act of 2021 called for increasing the number of justices to 13, giving Biden the opportunity to nominate four new justices that could be confirmed by a Democratic-led U.S. Senate — swiftly ending current conservative control of the Court.
AOC has questioned why just nine justices can “overturn laws that hundreds and thousands of legislators, advocates and policymakers drew consensus on.”
“How much does the current structure benefit us?” the ‘Squad’ member told Fox News just a few months after Biden began his presidency. “And I don’t think it does.”
Democrats have been down this road before.
President Franklin D. Roosevelt in 1937 threatened to pack the Supreme Court with justices who agreed with his New Deal policies.
His arguments were similar to those of modern-day Democrats, and every bit as political.
“This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done,” Roosevelt said of his ill-fated plan.
As the National Constitution Center explains:
“The legislation struggled to gain traction and it was opposed not only by Chief Justice Charles Evans Hughes but also by Justice Louis Brandeis and members of Roosevelt’s Democratic Party. Soon, changing voting patterns on the Court along with vacancies made the court-packing plan a moot point.”
In re-introducing the constitutional amendment, Gallagher noted that the concept of expanding the court beyond nine justices has been opposed not only by conservatives, but by former liberal Justice Stephen Breyer, the late-Justice Ruth Bader Ginsburg, and Biden.
“President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the Court …He was legalistically, absolutely correct, but it was a bone-head idea,” Biden said in a 1983 speech when he was chairman of the Senate Judiciary Committee. “It was a terrible, terrible mistake to make it and to put it into question for an entire decade the independence of the most significant body, including the congress, in my view, the most significant body in this country, the Supreme Court of the United States of America.”
Biden’s press secretary has said the president remains opposed to packing the Court, even after last year’s ruling overturning Roe v. Wade. The president recently told MSNBC that doing so would “politicize [the court] maybe forever in a way that is not healthy.”
At the same time, the odds of moving a constitutional amendment to lock in the number of justices at nine are long, to say the least. It would first require approval from two-thirds of the House and Senate. Three-quarters of the states would then need to ratify it. With Democrats in control of the Senate and the White House and Republicans holding a narrow majority in the House, the amendment proposal isn’t likely to move out of Congress.
But Gallagher said it’s time to pass a constitutional amendment to make the nine-justice court precedent permanent “before it’s too late.”
“We can’t undermine the public’s confidence in the Court because ‘the squad’ didn’t get its way,” he said.
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M.D. Kittle is the National Political Editor for The Star News Network.
Photo “Mike Gallagher” by Mike Gallagher.
