Two members of Congress have introduced a constitutional amendment to officially cap the number of seats on the U.S. Supreme Court at nine, in an effort to de-escalate politically motivated attempts to pack the court with ideological fellow travelers.
The amendment, sponsored by Reps. Collin Peterson (D-Minn.) and Denver Riggleman (R-Va.), reads: “The Supreme Court of the United States shall be composed of nine Justices.” Currently, the nation’s highest court does not have any limit on seats, as defined by the U.S. Constitution, but the court has been kept at nine since the 1860s out of a respect for precedent.
The proposed amendment strikes a blow to Democratic politicians who have threatened to increase the size of the court, should they win the majority in this year’s elections.
Those threats come after the death of Ruth Bader Ginsburg and President Trump’s nomination of social conservative Amy Coney Barrett, of the 7th Circuit Court of Appeals, to be her successor, which would enshrine a 6-3 conservative majority on the high court for the foreseeable future.
Many Democrats believe that Republicans effectively “stole” a seat from them that should have been filled by former President Barack Obama following the death of conservative Justice Antonin Scalia in 2016.
However, Republican senators refused to hold confirmation hearings or a vote on the nomination of Merrick Garland, instead leaving the seat open until President Donald Trump could seat his preferred choice of Neil Gorsuch.
As a result, they believe that packing the court with additional seats would swing the court in a more liberal direction, bringing the court in line with beliefs that, they claim, are held by a majority of Americans.
To the chagrin of Democrats, Republicans say they will move forward and confirm Barrett to the high court, with only two Republicans — Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) — saying they will not vote to confirm a nominee ahead of November’s election.
They also accuse Senate Republicans of hypocrisy, noting that Senate Majority Leader Mitch McConnell argued in 2016 that a president should not have a right to name a Supreme Court nominee during an election year.
In a news release announcing the amendment, Peterson warned that “partisan attempts to change the size of the court will set off a judicial arms race which will further divide our country.”
He claimed that the so-called “Keep Nine” Amendment would prevent court-packing and would “permanently protect Americans from these dangerous proposals,” reports the Grand Forks Herald.
“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 in a statement. “If one party succeeds in packing the Court, the next party to hold a majority may choose to do the same in retaliation.”
David Johns, the executive director of the National Black Justice Coalition, said in a statement that the proposed constitutional amendment was an acknowledgement that the Supreme Court should not be governed by partisan politics.
He also expressed skepticism that adding additional seats to the court would solve the root problem theat the court is perceived as a deeply partisan body, due in part to its narrow decisions on several “culture war” issues like abortion and LGBTQ rights.
“The Federalist Society has been stacking the courts, at every level, for some time now,” Johns said, referring to the archconservative legal society that advocates for an “originalist” approach to constitutional law. “In May 2018, Democrats on the Senate Judiciary Committee released a report accusing their Republican colleagues of conspiring with President Donald Trump to reshape the federal judiciary by appointing judges whose only qualifications are youth and conservative ideology. It’s a shrewd tactic that reflects the party’s ability to play the long game and we should continue to be concerned about the implications of this action for some time to come.”
Noting that LGBTQ advocates have expressed concerns over Barrett’s nomination due to her personal views opposing marriage equality and transgender rights, Johns said: “I don’t know that I want to get married, not in the way that we celebrate most often; however, I do know that the idea of a conservative court stripping me of that right — the ability to make the decision for myself — doesn’t sit well with me at all.”
Sarah Kate Ellis, the president and CEO of GLAAD, previously called on the Senate not to confirm Barrett, releasing a laundry list of concerns that LGBTQ advocates and other marginalized populations should have concerning her judicial record.
“GLAAD condemns the rush to nominate and confirm a Supreme Court justice while Americans are currently voting in the 2020 election. Polls show a majority of Americans want the election winners to nominate and confirm the next justice,” Ellis said in a statement.
She also criticized the Peterson-Riggleman amendment, adding: “This bill seems similarly premature and offers no recourse for a Court that’s already in danger of ideological imbalance for decades to come, a great risk to LGBTQ rights, women and other marginalized people. Let Americans have their say in the 2020 election before deciding the composition and size of the Court.”
Republicans have attached five anti-LGBTQ riders to the National Security and Department of State Appropriations Act for fiscal year 2027.
The bill, which funds the U.S. State Department and national security programs, is considered "must-pass" legislation. Lawmakers often attach riders -- unrelated provisions with little connection to the underlying bill -- to such measures in order to push through proposals that might not survive greater scrutiny.
According to an Instagram post from the Congressional Equality Caucus, Republicans on the House Appropriations Committee attached the anti-LGBTQ provisions to the funding bill.
The U.S. House of Representatives passed a bill requiring federally funded public schools to "out" transgender students to their parents if school officials learn the students identify as a gender different from their assigned sex at birth.
H.R. 2616, the "Stopping Indoctrination and Protecting Kids Act" -- dubbed the "Don't Say Trans" bill by critics -- passed 217-198, with eight Democrats joining Republicans and one independent in support of the measure.
Sponsored by U.S. Reps. Tim Walberg (R-Mich.) and Burgess Owens (R-Utah), the bill requires public schools to obtain parental permission before using names or pronouns that do not align with a student's assigned sex at birth or recognizing a student's gender identity.
The U.S. Supreme Court has declined to hear a case over whether public schools violate parents’ rights by affirming a student’s gender identity without notifying them.
The case, Foote v. Ludlow School Committee, involves parents Stephen Foote and Marissa Silvestri, whose middle school-aged child -- identified in court documents as B.F. -- began questioning their gender identity and seeing a therapist.
The parents claimed in court filings that staff at Baird Middle School were “pushing beliefs concerning gender ideology behind the parents’ backs” and encouraging students to question their identities, contributing to their child’s confusion.
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