Sens. Marco Rubio, R-Fla., Ben Sasse, R-Neb., and others spoke to reporters Wednesday in support of a constitutional amendment to cement the number of Supreme Court justices at nine amid fear that Democrats will pass legislation to expand the court should they win back the Senate and the White House in November.
Though the Constitution says nothing about the number of justices on the Supreme Court, the number has been set at nine since Congress passed the Judiciary Act of 1869.
"It's our hope that eventually we'll get a vote and maybe … people will have to be on the record about whether it's a good idea to destabilize one of the three branches of government by a court-packing scheme," Rubio said.
The issue of "court-packing" has become a key election issue since Justice Ruth Bader Ginsburg's death last month. An increasing number of Democrats are now willing to consider expanding the court or other "reform" measures in response to the liberal icon's looming replacement by nominee Judge Amy Coney Barrett, a conservative.
Even if Democrats win back the Senate and the White House, however, they would likely need to eliminate the legislative filibuster in order to pass a law adding justices to the Supreme Court.
Actions like that would mean the end of the Senate as the nation's founders envisioned, Sasse said Wednesday.
"The idea of nuking the Senate, ending its deliberative structure for the purposes of nuking the Supreme Court, is a much bigger deal than is being publicly understood right now," Sasse said.
The Nebraska Republican said Democrats are interested in "turning the Senate into just another House of Representatives, a simple majoritarian body that on 51-49, 49-51 swings every 24 months could try to remake more and more of American life."
"That is the opposite of the founders' vision of what the Senate is for," he said.
Since Rubio introduced a constitutional amendment to limit the Supreme Court to nine justices in March 2019, the idea has gained support from Republicans. Sen. Ted Cruz, R-Texas, and others unveiled their own "Keep Nine" amendment Monday, as well as a second proposal to "stop Democrats from unilaterally passing any court-packing legislation in the United States Senate."
As Republicans race toward a confirmation vote for Judge Barrett, Democratic presidential candidate Joe Biden has been careful not to answer questions about court-packing from reporters or Republicans. "Whatever position I take on that, that'll become the issue," Biden said at the first presidential debate.
--Editing by Peter Rozovsky.
For a reprint of this article, please contact reprints@law360.com.
