Growing national, bipartisan movement for constitutional amendment to keep SCOTUS at 9 justices

Outside of Washington, D.C., there is broad bipartisan support to prevent court packing.
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021.

Nationwide, a bipartisan majority of Americans are in favor of a constitutional amendment to keep the number of Supreme Court justices at nine, says Roman Buhler, executive director of Keep Nine, the movement leading the charge. However, the issue has become extremely partisan in Congress.

"The most fascinating thing has been the initial bipartisan support that we've gotten to the idea of keeping nine justices," Buhler told the John Solomon Reports podcast. "Our organization actually is led by a Democrat, a former state attorney general of Virginia. And it was originally proposed by a group of 15 former state attorneys general, a majority of whom were Democrat.

"And the Keep Nine Amendment, which says in its entirety, 'The Supreme Court of the United States shall be composed of nine justices,' was first introduced in Congress by a Democrat. So this is a bipartisan movement. Polling shows we have overwhelming support from the public, 62% in favor, only 18% against. Of those who have an opinion, overwhelming majorities of both Republicans and Democrats favor this amendment."

The politicians in D.C., however, see the issue in the usual binary, partisan terms.

"[I]n Washington, this has become a very partisan issue," Buhler said. "Because, as we know, Pelosi and Schumer can't wait to pack the court with their political cronies ... and uphold the things they want to do. And so it appears now that they've told Democratic members of Congress, 'You can say anything you want about court packing, but don't support a constitutional amendment to ban it.'

"On the other hand, on the Republican side, we now have two-thirds of the Republicans in the House of Representatives who support the Keep Nine Amendment. We have more than 40% of the Senate Republicans. ... We've gotten now more than 165 members of Congress to support the Keep Nine Amendment without hiring a lobbyist." 

The amendment was originally introduced in September 2020 by now-former Representatives Collin C. Peterson (D-Minn.) and Denver Riggleman (R-Va.).

On "Just the News a.m.," Rep. Andy Biggs (R-Ariz.) discussed the amendment, which was reintroduced in the House this year.

"It's been nine justices on the Supreme Court ... for over 150 years," Biggs said. "It's consistent with who we've come to become as Americans, looking at our judiciary, and they want to pack the court, and they want to stick four more on, coincidentally, so they can outnumber with Democrat appointments, the Republican appointments.

"So I introduced, basically, a constitutional amendment bill that would limit the Supreme Court to eight justices and one Chief Justice. And the idea, of course, is we need to maintain that same stability that we have there to at least keep a modicum of respect for this court as being independent and not a political tool.

"And what the Democrats are wanting to try to do right now is turning it into a political tool. And that's unacceptable to me. But I think, moreover, it's unacceptable to the vast majority of Americans, whether they're Republican or Democrat. The last thing you want is to see a Supreme Court just continue to to be manipulated by whatever party's in power so that you can get what you want from the Supreme Court."

Buhler explained the Democratic strategy on court packing.

"I think the Democrats have suddenly begun to pivot," he said. "Three weeks ago, they were hoping that they could pack the court within the next two years. I think the smart Democrats have now given up on that. And what you're seeing is a much, much, much more dangerous Democratic strategy.

"You're going to see more and more Democrats say things like, 'I'm not a fan of court packing,' or 'I think court packing is a terrible idea.' Or, 'You know, I don't support court packing.' And frankly, Nancy Pelosi has given them a license to do it by saying that she's not going to bring the Democratic court packing bill, that was just introduced, to the floor.

"But their strategy is to pretend, in 2022, like they're not interested in court packing. And anybody that raises court packing, Democrats are, 'Oh, no, no, the voters aren't interested in that. We're not doing it.'

"And so we're going to find that when Republicans say they're against court packing, and Democrats say they're against court packing, Democrats are hoping that ... court packing won't be an issue. Because they know that in 2020, they got creamed ... So they're not stupid. They aren't going to repeat that mistake.

"So we've got to say to Democrats, 'Will you — if you oppose court packing, if you're really sincere about it — will you support an amendment to permanently ban it?' And that is what Pelosi and Schumer and their allies won't allow. That's why not a single Democrat in the House or the Senate has so far supported the Keep Nine Amendment, even though we had two in the last Congress.

"And if there's a Democrat that wants to join in supporting the amendment, now they're a real firewall against court packing. And as Democrats realize they can't win elections if they are perceived, as you know, closet court packers, long-term court packers, whatever we want to call them, more and more of them are going to end up supporting this amendment. And eventually, the barrier for court packing is going to get too high. And Democrats may decide that it's worth supporting the amendment to ban it — that may take a few years."

Buhler added that President Biden's commission on reforming the Supreme Court, the charter of which says it will not make any recommendations, will simply be used as "cover for Democrats to say, 'See, the commission didn't recommend court packing. So court packing is not even an issue. We don't have to worry about court packing, it's not a problem.' And that'll be their story, right up until they have enough Senate votes to pack the court."

"And then, like a thunderstorm in the Midwest, it'll come out of nowhere. And they won't call it 'court packing.' They'll call it 'court reform.' And they'll have some collaborators, people — we already know who some of them are — some people who served in previous Republican administrations, who will bless whatever plan they come up with. But guaranteed, the plan they come up with, the reform they come up with will have one essential quality, and that is it will manipulate the current majority on the Supreme Court so the Democrats can take over.

"One of the most interesting things about this commission, is it's supposed to study all the ideas in the current public debate. Well, it turns out the idea in the public debate for Supreme Court reform that has more support than any other reform proposal is the Keep Nine Amendment."

Buhler laid out the strategy for the Keep Nine Amendment campaign, which includes using the grassroots movement to get every elected Republican and thousands of Democrats across the country to support it, while educating the public on the purpose of the amendment.

"And if we can do those three things right, we can make Keep Nine a household word," he said. "And we can basically force the political class in Washington to do something permanently to ban court packing ... instead of just talking about where they stand on [it], right? Politicians love to tell you where they stand, but it's really hard to get them to do something positive, and the Keep Nine Amendment is an opportunity to do that."