Proposing An Amendment to the Constitution of the United States to Require That the Supreme Court of the United States Be Composed of Nine Justices
Floor Speech
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Mr. SCHMIDT. Mr. Speaker, you will hear from advocates of Court expansion that the Court is a mere rubber stamp for Trump. This is a Court that defied Trump's efforts to overturn the 2020 election, to deport people without a hearing, to send troops to Chicago, to use emergency powers to impose tariffs, and to revoke birthright citizenship by executive order.
Some of my colleagues on both sides may be surprised that I just uttered those words, but those are not my words. Those are the words of three of my former colleagues, three former State Democratic attorneys general, who strongly support the Keep Nine Amendment and disagree with my friends on the other side: Chris Gorman from Kentucky, Steve Rosenthal, and Tony Troy from Virginia.
Mr. Speaker, it is sad that until this Congress, this was a bipartisan issue. It wasn't a Republican issue. It wasn't a Democratic issue.
Back when I served my State as attorney general in 2020, I wrote to the then-sponsors of this measure in this body and expressed my support for it, and it was a Republican from Virginia and a Democrat from Minnesota.
Mr. Speaker, I include both of these statements and letters in the Record at this point. State of Kansas, Office of the Attorney General, Topeka, KS, October 16, 2020. Hon. Collin Peterson, Washington, DC. Hon. Denver Riggleman, Washington, DC.
Dear Congressmen Peterson and Riggleman: I write in support of your proposed House Joint Resolution 95, which proposes to amend our United States Constitution to fix at nine the number of Justices on the Supreme Court of the United States. I commend you for your bipartisan leadership on this matter, the importance of which is apparent in light of recent calls for Congress to ``pack the court'' by amending statutes to add additional justices if the perceived balance among current justices tips in a manner disfavored by some.
Your proposed amendment is simple and self-explanatory. It would add the following thirteen words to our Constitution: ``The Supreme Court of the United States shall be composed of nine justices.'' If proposed by the requisite two-third majority of both houses of Congress and timely ratified by three-fourths of the state legislatures, this amendment would remove from the Congress authority to increase or decrease the number of justices on the Supreme Court in response to political pressures. The passions of the moment must not be allowed to undermine the independence of our Supreme Court.
The need could not be greater. Twice in the past century-- once in 1937 and again today--cries to ``pack the court'' by adding more justices for the purpose of diluting the influence of those already seated have risen to the fore of our nation's public discussion. The intent and effect of those cries have been to challenge the Supreme Court's independence in exercising judgment in cases and controversies before it. For the past 150 years, no other justification or need for altering the number of justices has gained attention, demonstrating that fixing the number of justices at nine, as is currently the case, is administratively and legally suitable. As the late Justice Ruth Bader Ginsburg famously said just over a year ago, ``Nine seems to be a good number.''
Our Constitution already provides mechanisms for public and political considerations to influence the composition of the Supreme Court over time--namely, the processes by which Americans elect a President and United States Senators and by which the President, with the advice and consent of the Senate, appoints justices when vacancies arise. Other provisions of our Constitution, such as the granting of lifetime tenure to justices during good behavior, are designed to ensure the independence of the judiciary. So too is your proposal.
By removing from Congress the ability to pack the court with additional justices in response to political pressures-- regardless of whether those pressures come from the political left, the political right, or elsewhere--your proposed amendment would reinforce our long and proud American tradition of an independent judiciary that, as Alexander Hamilton put it in Federalist 78, ``ha[s] neither FORCE nor WILL, but merely judgment.'' I commend you for bringing this measure forward and for your bipartisan cooperation in proposing it. I hope the House of Representatives and the Senate will see fit to advance it for consideration by the state legislatures so the American people, through the constitutional amendment process, can decide for themselves whether threats of court packing should remain an option available to Congress. I, for one, think it should not.
If I may be of assistance in your efforts, please let me know. Sincerely, Derek Schmidt, Kansas Attorney General. ____ The Keep Nine Coalition.
Dear Representative: As former state Attorneys General who served as Democrats, we write to urge you to protect democracy and the rule of law from authoritarians who would undermine both. We urge you to vote for the proposed ``Keep 9'' Constitutional Amendment, H.J. Res 1.
The ``Keep 9'' Amendment was first introduced in Congress in 2020 by a Democrat, Collin Peterson of Minnesota.
The Amendment would preserve an independent Supreme Court and take away the power of politicians from either party to manipulate the number of 9 Supreme Court Justices.
It simply states ``The Supreme Court of the United States shall be composed of nine Justices consisting of one Chief Justice and eight associate justices.''
If one political party expands the size of the Court to exert control, another party will one day retaliate by expanding the Court again, paving the path for a future authoritarian to make the Court a rubber stamp for the abuse of power.
The Supreme Court cannot remain independent if politicians can manipulate the size of the Court for political advantage.
You will hear from advocates of Court expansion that recent Court decisions restricting abortion and voting rights require expanding the size of the Court. That is simply not true.
If Democrats win control of Congress and the White House, they will have the power to enact legislation to strengthen voting and abortion rights and to curb the future abuse of executive power, without undermining the independence of the Supreme Court.
You will hear from advocates of Court expansion that the Court is a mere rubber stamp for Trump. But this is a Court that defied Trump's efforts to overturn the 2020 election, to deport people without a hearing, to send troops to Chicago, to use emergency powers to impose tariffs, and to revoke birthright citizenship by executive order.
We must preserve an independent Court to ensure that no would-be authoritarian President can ever run for a third term, seize voting machines and recount the votes, or cancel the licenses of broadcasters who criticize the ruling party.
You will hear from advocates of Court expansion that Republicans have already packed the Court, but although Republicans did manipulate the confirmation process, they did not undermine the independence of the Court by altering its size. Democrats must not make this mistake.
The challenge for Democrats in 2026 and 2028 is to win elections and end MAGA control of Congress and the White House.
It will be far easier for Democrats to win over the swing voters who will decide the outcome of these elections if Republicans cannot brand Democrats as the party that wants to pack the Supreme Court. Every Democrat who votes for the Keep 9 Amendment helps to increase the chances of victory for Democrats in close elections.
You, as a Democrat in Congress, have the opportunity right now to go on record for the preservation of an independent Supreme Court that will stand up to authoritarians who abuse power.
You have the power to help build a bipartisan coalition that can take away from Trump and from future authoritarians perhaps their most dangerous power: the power to transform a Court that checks the abuse of power into one that enables that abuse.
We urge you to vote for the ``Keep 9'' Amendment to preserve an independent Court that protects democracy, the rule of law, and every one of our Constitutional rights as Americans. Sincerely, Chris Gorman,
Former Attorney General of Kentucky. Steve Rosenthal,
Former Attorney General of Virginia. Tony Troy,
Former Attorney General of Virginia. The Keep Nine Coalition,
To Preserve An Independent Supreme Court.
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Mr. SCHMIDT. Mr. Speaker, I have long supported the Keep Nine Amendment because I think it is the right thing to do for our Republic.
As has been stated here many times in today's somewhat jovial but I think very serious debate, turning the Supreme Court into a political football, whose size is expanded first by Republicans, then by Democrats, whoever has the political will and whoever is aggrieved at the moment will undermine that Court's ability to perform its unique and critical constitutional function.
For all of the distress that my friends on the other side have right now in their complaints about the Court, I assure this body those will be magnified manyfold if we allow ourselves to get into a bidding war over the size of the institution across the street.
Mr. Speaker, I have sat there seven times at counsel table. I have argued three causes. I have second-chaired four others--
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Mr. SCHMIDT. I will tell you that sometimes I like how the court rules, behaves, and questions. Sometimes I don't like it. I have been on the winning end. I have been on the losing end, but neither of those is a justification to attack the institution itself.
My friend asks why nine and why would we give up our power? And the answer to that is we are not giving up our power because it is not within our power to do so. We are asking the people of this country, through the process that the Constitution establishes, whether they want to restrict our power and protect their Court at nine.
We should say ``yes,'' and I urge my colleagues to support H.J. Res. 1.
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