Jan 27, 2023

The "Keep Nine" constitutional amendment.

The current Supreme Court. Photo: Fred Schilling, Collection of the Supreme Court of the United States
The current Supreme Court. Photo: Fred Schilling, Collection of the Supreme Court of the United States

A new group is hoping to keep the Supreme Court as it is.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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For the last several years, calls to expand the Supreme Court have been growing louder.

Among some congressional Democrats, and especially among activists on the left, the idea of expanding the number of justices on the court is only becoming more popular — driven by dramatic decisions like the reversal of Roe v. Wade.

Christopher Kang, a writer at Democracy Docket, has said that "to save democracy, we must expand the court." Senator Elizabeth Warren (D-MA) argued that the Supreme Court should be expanded to "restore America’s faith in an independent judiciary." In The Washington Post, Nancy Gertner and Laurence Tribe argued that the "only hope" for a cure to the Supreme Court is expansion.

The argument for expanding the number of justices is pretty straightforward. For starters, the Constitution does not limit the number of Supreme Court justices, and Congress has changed the number of justices seven times already. Expansioners argue that today's court, with a strong conservative tilt, has already been "packed" by Senator Mitch McConnell, who broke precedent by refusing to give a hearing to President Barack Obama's then-nominee (and President Biden's current attorney general) Merrick Garland. Four years later, McConnell reversed his stance on how to treat a nominee toward the end of a presidency when Ruth Bader Ginsburg died, and he quickly moved to push through the confirmation of Justice Amy Coney Barrett weeks before President Trump left office.

Expansioners also make the case that adding justices could solve other problems, like public  trust in the court and how highly charged the confirmation process to seat a new justice is. With an expanded court, they argue, the stakes would be lower and more bipartisan candidates could be nominated. Some have simply argued that the case load for the Supreme Court is too big, and more justices would allow them to take on more cases.

I've written before about my preferred changes to the court, like a code of conduct or term limits, but not court expansion, which continues to be mainstreamed. In 2021, President Biden even formed a commission to explore the idea, but it did not endorse court expansion. Instead, the commission called for a new code of ethics and more court transparency.

Of course, there are plenty of people opposed to any potential expansion at all. Last week, I sat down with two of them.

Paul Summers and Steve Rosenthal, two former attorneys general who are pushing the "Keep Nine Amendment," are hoping to permanently enshrine the number of justices in the Constitution at nine. Summers and Rosenthal are co-chairmen of the Coalition to Preserve the Independence of the United States Supreme Courts, a group of bipartisan former State Attorneys General formed to fight any court expansion. Summers is the former attorney general of Tennessee and a former appeals court judge, while Rosenthal is the former attorney general of Virginia.

Below, you'll find a transcribed version of our conversation, which has been lightly edited for length and clarity. If you’d prefer to listen, you can find a podcast version of this interview here.