Constitutional Amendment to Prevent Supreme Court Packing Resurfaces

Sen. Shelley Moore Capito (R-W.Va.) introduced legislation on Jan. 22 to amend the U.S. Constitution to limit the Supreme Court to nine justices, the numerical cap that has been in place for well over a century, in order to prevent Democrats from enlarging the court’s membership.

Amending the Constitution is no easy task. The amendment bill must pass by a two-thirds supermajority in both houses of Congress and then be ratified by three-quarters of the states, or 38 of the 50 states, to become part of the Constitution.

The move comes after then-President Donald Trump’s conservative constitutionalist nominee, Amy Coney Barrett, was confirmed before Election Day, replacing the liberal Ruth Bader Ginsburg, who died in September.

Filling the seat quickly in an election year enraged many Democrats, given the precedent of Merrick Garland. Following the election-year death in 2016 of Justice Antonin Scalia, the then-Republican-majority Senate refused to take up then-President Barack Obama’s nomination of Garland to the Supreme Court. He has since been nominated by President Joe Biden to become his attorney general.

Biden flirted with the idea of court-packing during the recent campaign but didn’t endorse it, saying he would create a national commission to look at a court system he described as “out of whack.” In October, Speaker of the House Nancy Pelosi (D-Calif.) said that because the U.S. population has increased over the past century and a half, more justices may be needed to sit on the Supreme Court. Read more…

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