Keep the Nine

National Review Online 

Friday, November 08, 2024 

 

Were the Republican Party feeling puckish, it could now happily adopt all of the cynical “reforms” that the Democrats proposed when they believed that they were going to win Tuesday’s presidential election. In the run-up to the vote, Senator Chuck Schumer expressed a wish to impose unconstitutional term limits on the Court that — by an extraordinary stroke of luck — would have had the effect of rapidly removing the three most senior Republican-appointed justices from office and allowing the Democrats to replace them with their own. Astonishingly, this proposal was the modest successor to an even more brazen idea, expressed a few years ago when the Democrats controlled Congress and the White House, that would have dispensed with the obfuscation and had the legislature “expand the Supreme Court by four or more seats.” Having been placed in control of the appointment process for at least two years, the new Senate majority leader would be within his rights to pick up these ideas, echo the urgent language of their adherents, tweak them to his party’s advantage, and dramatically increase the size of the conservative majority on the Court. 

 

Such a move would be amusing, and, given how utterly disgraceful the Democrats’ opportunistic vandalism has been, it would be deserved. It would also be a bad idea. The Constitution is not a toy, and, tempting though it might be to make its enemies eat their vegetables, one does not demonstrate the integrity of an institution by emulating its enemies’ shenanigans. To prove that they are serious about protecting the American system of government, Republicans thus ought to take the opportunity that they have been granted and introduce an amendment to the Constitution that would permanently prohibit such games. This amendment would be simple, and could read something like this: 

 

The Supreme Court of the United States shall be composed of nine members. Justices shall remain in active service on the Supreme Court during Good Behaviour, and once confirmed by the Senate, shall not be removed from active service except by impeachment. 

 

There is already a proposed “Keep Nine” amendment, which covers the first sentence and would be good; adding the second sentence would foreclose the precise workaround presently being pushed by Democrats. 

 

Democrats May Refuse to Certify a Trump Election If He Wins. The Supreme Court Could Prevent That 

Those who advocate increasing the number of Supreme Court justices often contend that, because the measure is not technically unconstitutional, it therefore poses no threat to the Constitution. This is nonsense. There are, in fact, many alterations to long-standing tradition that would be technically legal but that would be catastrophic if indulged. If they so wished, a majority of the House and a supermajority of the Senate could remove the duly elected president and replace him with a member of the ruling party, simply because they preferred someone else in the role. Alternatively, the majority party in either chamber could expel all the members of the minority party, simply because it disagreed with their views. Strictly speaking, both of these actions would be legal and nonjusticiable. They would also destroy our system. 

 

When, in the 1930s, a wildly popular President Franklin Roosevelt proposed adding more members to the Supreme Court on the grounds that he did not like the current crop’s supervision, his own party turned on him with force. In its report, the Senate Judiciary Committee concluded that Roosevelt’s plan “violates every sacred tradition of American democracy,” corrupts “all precedents in the history of our government,” runs “in direct violation of the spirit of the American Constitution,” represents “an invasion of judicial power such as has never before been attempted in this country,” and ought to be “so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” At the time that these words were written, the Democrats had 75 seats in the Senate. 

 

Alas, we are once again living through such a presentation. The Republican Party ought to spearhead a movement to ensure that it is the last time it happens. Much as FDR’s rejection of George Washington’s virtuous tradition of serving only two terms as president led the GOP to formalize the rubric in the 22nd Amendment, so the Democrats’ repeated flirtation with packing the Supreme Court ought to inspire the public to constitutionalize the status quo. There is nothing wrong with the United States Supreme Court, even if, for the first time since the New Deal, it has proved to be an obstacle to the progressive movement’s most unconstitutional desires. On Tuesday, those desires were roundly repudiated by the voting public. Republicans ought to capitalize on that, and to use it as a solid opportunity to guarantee the maintenance of our judicial system in the face of the most craven threat it has faced since the spring of 1937.