President Donald Trump nominated Seventh-Circuit Court Judge Amy Coney Barrett as his choice to replace the late Supreme Court Justice Ruth Bader Ginsburg on Saturday. Even before weighing Barrett's nomination, the Senate should take a huge step to honor the path-breaking jurist, who passed away on September 18 at age 87.
Senate Majority Leader Mitch McConnell, R-Ky. should introduce, and the Senate should adopt, what I call the "Ginsburg Amendment." This measure would add the 28th Amendment to the Constitution and enshrine in America’s most sacred document Justice Ginsburg’s fervent wish: to define the Supreme Court as a nine-member body.
Ginsburg was crystal clear about this, as recently as July 24, 2019.
“Nine seems to be a good number,” Ginsburg told National Public Radio’s Nina Totenberg. “It’s been that way for a long time.”
Ginsburg elaborated: “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
In 1937, President Franklin Delano Roosevelt attempted to inflate the high court to 15 seats from nine, where it had stood since Congress so specified in 1869. FDR calculated that the extra six justices whom he hoped to nominate would join the court’s existing liberals and support the New Deal: his aggressive expansion of Uncle Sam’s reach into American life.
The public bristled at FDR’s plan. In fact, his own Democrats, who controlled Congress, sandbagged his ambitions after citizens recoiled at the president’s undisguised lunge for control.
“If anything would make the court look partisan,” Ginsburg told Totenberg, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”
The Ginsburg Amendment would bring to life the Brooklyn-born jurist’s wisdom on this vital matter.
It also would stymie Roosevelt’s political great-grandchildren, who likewise want to install new SCOTUS seats, to overwhelm today’s 5-4, somewhat-working conservative majority (plus or minus the philosophically itinerant Chief Justice John Roberts) and reinvigorate the court as a bulwark of statism.
- Senator Ed Markey, D-Mass. threatened that if McConnell and the GOP Senate fill Ginsburg’s seat this year, “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
- Senator Mazie Hirono, D-Hawaii, welcomed a swollen SCOTUS as “long overdue court reform,” a deceptively anodyne term for this radical idea.
- Eric Holder, Obama’s attorney general, also used this colorless phrase on MSNBC September 19 when he argued, “…we need to think about court reform, and at a minimum, as part of that reform package, I think additional justices need to be placed on the Supreme Court.”
- “Filling the SCOTUS vacancy during a lame-duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials,” House Judiciary Chairman Jerrold Nadler, D-N.Y. railed via Twitter. “Congress would have to act, and expanding the court would be the right place to start.”
A prompt vote on the Ginsburg Amendment would give every senator — Democrats, independents, and Republicans — and especially Democrat vice presidential nominee Kamala Harris, D-Calif., a perfect and timely opportunity to stand with Justice Ginsburg and protect the highest court in the land as a nine-seat panel or, conversely, rebuff Justice Ginsburg and leave the Supreme Court naked to partisan schemes to balloon its membership.
Senate Minority Leader Chuck Schumer of New York should rally his caucus to support the Ginsburg Amendment. Doing so would be consistent with his 2016 statement, via Twitter: “In order for justice to remain a pillar of this nation we must have a functioning judicial branch. The #SCOTUS must have nine.”
Before advancing to the contentious question of Ginsburg’s replacement, McConnell and Schumer should co-lead a bipartisan effort to unify at least two-thirds of the Senate behind what Ginsburg so passionately desired: a nine-seat Supreme Court.
This language then could advance to the U.S. House, where a two-thirds majority could send this proposal to the states. The approval of three-quarters, or 38, state legislatures would engrave Ginsburg’s counsel into the Constitution.
This ultimate appreciation for the life and mind of Ruth Bader Ginsburg should start in the Senate.
It’s time to call the Ayes and Noes on the Ginsburg Amendment.
Bucknell University sophomore Michael Malarkey contributed research to this op-ed.