Efforts To Limit U.S. Supreme Court To 9 Justices Increase

With the recent death of U.S. Supreme Court Justice Ruth Bader Ginsburg, and the potential seating of a new, conservative judge to replace her, some Democrat lawmakers are interested in expanding the court in an effort to keep balance between conservative and liberal judges.

Former U.S. Rep. Nick Rahall, a Democrat who represented West Virginia for almost four decades, has joined a new bipartisan group called Keep Nine. They want an amendment to the U.S. Constitution that will prohibit expanding the number of justices on the high court.

Eric Douglas spoke with him to find out why.

This interview has been lightly edited for clarity.

Douglas: With the passing of U.S. Supreme Court Justice Ruth Bader Ginsburg, there have been rumblings about adding as many as four additional justices to the Supreme Court. Is that the situation as you understand it?

Rahall: That’s correct, and that’s what I think is most dangerous.

Douglas: The US Constitution actually doesn’t say how many Supreme Court Justices we are supposed to have.

Rahall: No, it does not. That’s why I support a constitutional amendment clarifying it.

Douglas: We’ve had a low of five and as many as 10 justices, but for more than 150 years there have been nine justices, so it’s a well-established system. What is your concern with what may happen?

Rahall: Well, if there’s one thing that’s almost certain in political life, it is that what goes around comes around. If Democrats today were to push forward, as some key Democrats have left open the possibility, to pass legislation expanding the size of the Supreme Court, packing the court so to speak, then it only opens the door for retaliation in the future if Republicans were to maintain or increase their control of the United States Senate. We would get in a very dangerous cycle of retaliation, that, in my opinion, destroys the independence of our United States Supreme Court. And that’s why I’m supportive of efforts to pass a constitutional amendment to keep the size of the U.S. Supreme Court at its current size of nine.

Douglas: Why did you feel it was important to become involved in this effort?

Rahall: I’ve been involved with it probably close to a year now. I happen to believe my late mentor, Sen. Robert C. Byrd, would feel very strongly the same way. He often spoke about the U.S. Supreme Court. Of course, he was considered, at one time, under Richard Nixon, as a possible nominee to the high court. He was consistently opposed to efforts to change the rules to pack the Supreme Court. I think court packing should be taken permanently off the table as a political option by either party,

Douglas: The process to get this passed would be a constitutional convention. What do you think is the likelihood of making that change, of actually creating an amendment to the Constitution and getting it ratified by the states?

Rahall: There’s no question it would be very difficult; very, very difficult. I might add, though, that just this week, the first step was taken with the introduction of a bill in the U.S. House of Representatives.

So that’s the first step. But you’re exactly right. It does take an amendment to the Constitution, which means the House has to pass it, and then it has to go to the Senate, then it has to go to the states for two- thirds approval. So it’s a very uphill battle. There’s no question about it, as any amendment to the Constitution would face, but the process started this past week.

On Sept. 24, 2020, Collin Peterson, a Democrat from the 7th District of Minnesota and Denver Riggleman, a Republican from the 5th District of Virginia, introduced House Judiciary Resolution 95.

It states: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:

“Article — “The Supreme Court of the United States shall be composed of nine justices.”

In March 2019, U.S. Rep. Mark Green, a Republican from the 7th District of Tennessee, introduced a similar resolution.