When President Trump returned to office last year, Democrat calls to pack the U.S. Supreme Court noticeably went quiet. Like clockwork, the party’s vociferous demands to stack the high court with left-wing activists to produce decisions favorable to them vanished like a thought in Joe Biden’s head.
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And then the Supreme Court’s Louisiana v. Callais decision happened.
Released in late April, the 6-3 ruling found that Louisiana’s drawing of a second majority-minority congressional district amounted to an “unconstitutional racial gerrymander.” More notably, however, it smacked down states’ ability to engage in race-based redistricting — a tactic Democrats unlawfully embraced to carve out districts that reliably vote for their party.
Clearly feeling confident about their prospects in the upcoming midterms, several Democrats immediately resuscitated their dormant campaign to pack the Supreme Court as a means of protecting their political power. From House Minority Leader Hakeem Jeffries to former Vice President Kamala Harris, the number of Democrats throwing their weight behind this extreme power grab seems to grow by the day.
The court’s defenders, however, are hoping to stave off this radical push to add more justices with a solution of their own.
The House Judiciary Committee announced that it will consider a constitutional amendment proposal on Wednesday that aims to address this problem. Dubbed the “Keep Nine” amendment, the measure would amend the Constitution to require that SCOTUS “be composed of nine justices,” which has been the established number since 1869.
The amendment is being championed by the aptly named Keep Nine Coalition. Comprised of a bipartisan group of previously elected officials and grassroots organizations, the alliance seeks to protect the Supreme Court’s long-term independence and legitimacy by pushing lawmakers to pass the aforementioned amendment.
“We’ve survived for [nearly] 250 years with a court that has been able to say no to politicians when it really had to. Not every time, but enough of the time to make an important difference,” Keep Nine Director Roman Buhler told The Federalist. “We have three branches of government. If we lose that, [it will be like] trying to ride a tricycle with two wheels. It doesn’t work.”
How It Started
The Keep Nine Coalition’s origins date back to 2017-2018, when there appeared to be “increasing unhappiness on the left side of the political spectrum with the direction of the court,” according to Buhler. It soon became apparent that this dissatisfaction was leading to the emergence of a “Democrat strategy” to eliminate the Senate filibuster and pack the Supreme Court with left-wing ideologues once the party regained trifecta control of the federal government.
Federalist Editor-In-Chief Mollie Hemingway explored in her bestselling book Alito how the left’s recent infatuation with packing SCOTUS stems from their use of the court as a vehicle to enshrine their agenda into law without going through the normal legislative process. Now that the court is currently unavailable to them as a “super-legislature,” the left set its sights on packing the court with left-wing activists who will rule on cases to give them a particular outcome.
As this game plan started to unfold, it became clear to Buhler and Keep Nine’s early supporters that the best way to prevent the scheme from succeeding was to pass a constitutional amendment enshrining the number of justices on the court at nine. Buhler said the organizers received advice from former Reagan Attorney General Ed Meese to find Democrat support for the amendment early on because they would “not be able to do this amendment if it’s only Republicans.”
The primary method historically used to amend the Constitution requires all proposed amendments to receive two-thirds support from lawmakers in both chambers of Congress. Those amendments must also receive backing from at least three-quarters of states in order to ratify America’s founding legal document.
Keep Nine found an early Democrat supporter in former Virginia Attorney General Andrew Miller. In agreeing to spearhead the effort, the now-deceased Miller assembled a coalition of former state attorneys general (eight Democrats and seven Republicans) to advocate for the amendment’s passage.
With Keep Nine officially in the works, the organization’s next challenge became finding members of Congress to introduce the amendment. After “a lot of searching,” Buhler said the coalition landed on then-Rep. Collin Peterson, D-Minn., who hailed from a heavily rural district and was the leading Democrat on the House Agriculture Committee for more than a decade. Pairing up with then-Rep. Denver Riggleman, R-Va., Peterson formally introduced the amendment in the House in September 2020, with Sen. Ted Cruz, R-Texas, leading its introduction in the Senate a month later.
“The Supreme Court is an important part of our country’s system of checks and balances, and it is vital that we preserve its independence,” Peterson said at the time. “I worry that partisan attempts to change the size of the court will set off a judicial arms race which will further divide our country. If one party succeeds in packing the Court, the next party to hold a majority may choose to do the same in retaliation.”
Rep. Dusty Johnson, R-S.D., has since become the amendment’s primary House sponsor following Peterson and Riggleman’s respective departures from Congress. Rep. Andy Biggs, R-Ariz., has also introduced a version of the amendment.
The Game Plan
According to Buhler, the Keep Nine Coalition’s success at garnering nearly 130 co-sponsors across the House and Senate can be attributed to its grassroots volunteers.
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The Keep Nine director told The Federalist that the coalition enjoys participation and support from organizations like the National Federation of Republican Women, Eagle Forum, and Americans for Limited Government. Some of these groups deploy their activists to reach out to members of Congress to encourage them to back the amendment. Others, like Advancing American Freedom, have put together a coalition letter “signed by a lot of different conservative leaders” encouraging passage of the measure.
Buhler also underscored the work of the coalition’s interns, who similarly conduct outreach to congressional offices about the amendment and “preserving an independent Supreme Court.” He said that last year their more than a dozen interns — whose beliefs spanned “all across the [political] spectrum” — “fanned out over the Capitol” and held meetings with the offices ranging from Sen. Bernie Sanders, I-Vt., to Sen. Marsha Blackburn, R-Tenn.
“These kids have had a pretty big impact,” Buhler said. “There’s some people who are Republicans and voted for Trump, and there’s some people who are Democrats [and] voted for Harris, but they all agree that this amendment is necessary to … make sure that neither side can rig the [court].”
The coalition’s volunteer activism also extends into the states, in which similar outreach efforts are deployed to state legislatures to encourage those lawmakers to pass resolutions expressing support for the “Keep Nine” amendment. Approximately 20 state legislative chambers have passed such resolutions, according to Buhler.
The Marble Road Ahead
While praising the progress his coalition has made, Buhler acknowledged that getting the “Keep Nine” amendment ratified is no easy feat. The amendment has zero Democrat co-sponsors in the current Congress, a numbers problem that puts it well short of the two-thirds support needed for passage.
Buhler said that some of Keep Nine’s Democrat supporters and volunteers have had conversations with “a significant number” of Democrat congressional members “who say that court packing [or] court expansion, is a bad idea.” He also cited past comments from Sens. Jeanne Shaheen and Maggie Hassan, D-N.H., Catherine Cortez Masto, D-Nev., Michael Bennet, D-Colo., and other Democrat lawmakers expressing opposition to adding seats to the Supreme Court.
“The challenge for us,” Buhler said, “is to get those members who agree that court expansion is a bad idea to go to the next step and say, ‘Look, it’s a bad idea and we ought to ban it.’”
Buhler noted that Democrat lawmakers who may be inclined to support the amendment are put in rough spot, in which doing so could result in significant backlash from their party’s congressional leadership and “most powerful interest groups” — all of whom have signaled support for court-packing. To defy these entities alone could prove to be politically “risky,” he said.
[READ: In Hearing On Court-Packing’s Partisan Perils, Not A Single Democrat Disavowed It]
The Keep Nine director disclosed that breaking this cloud of fear will be among the coalition’s chief priorities this summer. He expressed hope that even if they don’t garner the numbers to pass the amendment outright, if their volunteers can convince a “handful” of sympathetic Democrats to come out supporting it, that may generate enough energy to stymie the left’s court-packing gambit in the short term.
“You think, ‘Well, what can a handful of Democrats do when you need two-thirds [to pass the amendment]?’ Our thinking is that if a handful of Democrats in Congress stand up and say [they’re] not going to allow the independence of the Supreme Court to be undermined … and they’re not going to go along with court expansion, then the leaders of whatever Democratic majority might be elected in the future might … realize [they] don’t have the votes to expand the court,” Buhler said, referencing former Sens. Joe Manchin, D-W.V., and Kyrsten Sinema, I-Ariz., and their opposition to nuking the filibuster under President Biden that killed the left’s court-packing momentum.
“Even a handful of Democrats that are willing to stand up now and say, ‘Let’s not do this,’ could have a big impact because it could it could change the strategic calculation for all Democrats,” he added.
Buhler closed his remarks warning what would happen should left-wing court-packers succeed in their efforts. In addition to creating a scenario in which each party would pack the Supreme Court once in power to offset the other’s appointed justices, he predicted that the court’s legitimacy and the “rule of law” would crumble.
“At crucial points in American history, it’s been the independent court and the respect for that court that has held the country together through some pretty tough times,” Buhler said. “If this court becomes viewed as simply a puppet of politicians in Washington — who don’t have a lot of credibility around the country — I think some very unpredictable things could happen.”
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