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Guest Opinion: Keep 9 Amendment To Stop Court Packing

By Marc Ang

As a community organizer and journalist, nothing interests me more than covering the impact of natural grassroots movements. I have found a major disconnect with what the political class considers priorities and what “man on the street” feels is important. 

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Surprisingly, this year, we had a similar disconnect regarding a highly political issue, but when I drilled down, it was more of a “tradition” and bipartisan issue. America’s history is short but it’s important we cherish it and preserve the things that made us so successful. 

This year, with a new administration coming in, the majority party proposed the addition of Supreme Court justices, a knee jerk reaction to the Republicans appointing 3 justices last administration.

However, the bipartisan Keep Nine initiative is highlighting that this move is short sighted. Democrats, Independents and Republicans, all political stripes, alike have come together to oppose this move, garnering even the support of college Progressive groups on the left as well as Democratic Attorneys General, usually for different reasons.

I interviewed Paul Summers, former Attorney General of Tennessee, who serves as a chair of the Keep 9 initiative. With extensive experience as an elected District Attorney, appellate court judge, senior judge and later AG, he has observed the judicial system from many different angles. "We're truly a grassroots organization. We are against court packing. The system has worked very well. Independent judiciary is the crown jewel of our democratic republic."

From a historical perspective, Summers cited that the other two branches are political but the judicial branch was intentionally designed to be non-political and independent. They are not supposed to follow politics, even, but their sole focus should be to interpret the Constitution. “We've had nine justices on the Supreme Court since 1869. We've had a minimum of five and a high number of 10. It was reduced to nine in 1869, after the Civil War, and it’s been nine for 152 years."

I also spoke with Keep Nine’s Executive Director Roman Buhler spoke about the balance of state and federal power and is against nationalizing election law, in general but saw a push for court packing that was frightening and needed to be addressed nationally. Buhler and Summers, with the help of other activists, put together a team of attorneys general and former AGs to garner attention around this issue. Most notably, Minnesota Democratic Congressman, Collin Peterson, former chairman of the Agriculture Committee, introduced an amendment in the House of Representatives which then garnered Senator Ted Cruz’s Senate support. Summers' co-chair on Keep Nine is Democratic AG Steve Rosenthal of Virginia, highlighting bipartisan collaboration.

Now, the Keep Nine coalition has garnered the support of more than 200 members of Congress, who have endorsed the amendment, along with 800 state legislators around the country. Resolutions have been passed in 19 state legislative chambers urging Congress to propose the amendment. They also have a growing number of governors, lieutenant governors and state attorneys general on board. Keep Nine’s top legal adviser is Ed Meese, President Reagan's former Attorney General.

Buhler believes it’s the grassroots movements that were able to help persuade Congress to propose in the states to ratify amendments like the one for women's suffrage (right to vote) and amendments like limiting presidential terms. 

A new poll by McLaughlin and Associates asked voters, “Would you support a constitutional amendment that says the Supreme Court of the United States is nine justices”, an astounding 64% say yes, with only 17% saying no. Broken down, even Democrats are in favor of “keeping nine” with a 51 percent “yes” and 27 percent “no” spread. 

Keep Nine believes that grassroots Democrats around the country are against court packing, believing that the Supreme Court ought to be independent, and not controlled by politicians.

In order to pass this Constitutional Amendment, it requires two thirds of the house so “Keep Nine” needs 290 members of the House, and 67 members of the Senate. While the political realities of getting all Republicans and at least 1/3 of Democrats seems to be a gigantic task, Keep Nine is optimistic about this being a non-political but a true grassroots issue that will inspire the electorate. “I think judges on both sides of the ideological spectrum agree that one of the things that make them different from politicians is they are there to interpret the law, not to make the law".

Buhler says that political realities around getting elected will move even Democratic politicians to support keeping nine. He cites women's suffrage, prohibition, the repeal of prohibition, presidential term limits and even 18 year old voting as amendments in recent history, due to "overwhelming majorities of voters deciding that they wanted the amendment, and strong grassroots and community movements that made the issue central.”

This success has now inspired young people, even those on the left as evidenced by “Progressives For Keep Nine”, mostly out of fear that if a Republican President or Trump were to get back in power, they can further pack the Supreme Court. Progressives also agree that the Supreme Court should not be a puppet of politicians. Bernie Sanders himself in the presidential debate said, “I'm not for packing the court because I'm afraid Republicans will do it”.  So did the late Supreme Court justice Ruth Bader Ginsburg. Candidate Joe Biden also concurred initially before changing course. And now his Secretary of State Tony Blinken just gave a speech in Ecuador against court packing, calling it a threat to democracy.

Buhler summarizes perfectly, “One party adds four judges, three judges, the other party adds three judges and the courts lose all respect.”

When asked about the bigger issue around activist judges, Summers doesn’t believe that the judges are necessarily activists and any calls around that are overblown. “The party that doesn't like the decision has been arguing political action and political activity for the last 230 something years since we've had a Supreme Court. There is not a case that gets before the Supreme Court that is not controversial.”  

In closing, Summers sees calls to court-pack as a poor temporary remedy for those unhappy with these decisions or the political climate. He cited FDR in 1937 trying to pack the court. Even when Democrats were in control of all branches, he was unable to and received a backlash for it. 

To get involved, send Keep Nine an email to leaders@keepnine.org and say, “I'd like to become more involved”. If you want to learn more about the effort and see the list of supporters, you can visit www.keepnine.org.

You can view the full interview here.

Marc Ang (marc@aib2b.org) is a community organizer in Southern California and the founder of Asian Industry B2B. Marc’s book “Minority Retort” will be released in late 2021.

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