By Rick Manning
It is anticipated that Senator Ted Cruz (R-Texas) will introduce the Keep Nine Amendment to the U.S. Constitution within days, and every U.S. Senator regardless of political party should support it.
We have seen the threat to politicize the Judicial Branch through a court packing scheme threatened by the Democrat Senate leadership playing to the AOC middle of their party. They know that packing the Supreme Court is nothing more than a callous politicizing of the independent judiciary and quite frankly many in the Senate simply don’t care. Power is more important than quaint ideas like constitutional checks and balances and it is important that Congress take a stand against this threat by sponsoring the Keep Nine Amendment.
This amendment is simple. It fixes the number of Supreme Court justices to nine. The number cannot be added to or subtracted from without another constitutional amendment.
At a time when the left is attacking the idea of filling a Supreme Court vacancy as “court packing,” the public needs to be assured that Congress will fight any attempt to do just that. What’s more, this is a great opportunity to educate the American people on why changing the number of justices on the Supreme Court to fit political whims is the end of constitutional protections for minority rights and the rule of law.
The best precedent for Keep Nine was the choice by Congress to limit presidential terms to two through the 22nd Amendment which passed Congress in 1947 and was ratified by the states in 1951 after Franklin Roosevelt had won four consecutive terms before dying in 1945. Prior to FDR’s run for a third term in 1940, there was a 152-year precedent of the President of the United States only serving two-terms in office set by George Washington, when he decided that eight years was enough in order to avoid the President becoming like a king.
Now we have a 151-year precedent of the Supreme Court having nine members in order to create stability and another check on the powers of the federal government.
Just as the post-FDR Congress decided to send the 22nd Amendment to the states for ratification, it is important for Congress to lead the way in beginning the long, deliberative process of whether to establish a set limit on the number of Supreme Court justices.
The danger to constitutional checks and balances cannot be overstated. If the Supreme Court becomes subject to presidential packing, the best way to get a legal stamp of approval will no longer be to push constitutionally limited and restrained regulations and policies, but instead to ensure that judges favorable to those policies hear those cases.
Senator Cruz is absolutely correct to offer this important amendment. Congress must take a stand now for the future independence of our nation’s federal courts — before it is too late.
Rick Manning is the President of Americans for Limited Government.
Adapted from an Oct. 16, 2020 letter to the U.S. Senate.
