Senate Republicans offer constitutional amendment to block Supreme Court packing

Sen. Ted Cruz (Texas) and five other Senate Republicans have introduced a constitutional amendment to prevent Democrats from packing the Supreme Court if Joe Biden wins the White House and Democrats capture the Senate.

The proposed amendment simply states: “The Supreme Court of the United States shall be composed of nine justices.”

It would need to pass with a two-thirds super majority in both the Senate and the House and need to be ratified by three-fourths of the states, or 38 of the 50 states, within seven years after its submission for ratification.

“Make no mistake, if Democrats win the election, they will end the filibuster and pack the Supreme Court, expanding the number of justices to advance their radical political agenda, entrenching their power for generations, and destroying the foundations of our democratic system,” Cruz said in a statement.

“We must take action before election day to safeguard the Supreme Court and the constitutional liberties that hang in the balance,” he added.

The other Republican sponsors of the plan are Sens. Thom Tillis (N.C.), Martha McSally (Ariz.), Roger Wicker (Miss.), Kelly Loeffler (Ga.) and Cindy Hyde-Smith (Miss.). Tillis, McSally and Loeffler are face competitive reelection races this fall.

“Proposals to ‘pack’ the Supreme Court and add seats to change its ideological balance should concern every American. There have been nine seats on the Supreme Court for more than 150 years, providing stability and trust in the rule of law,” Wicker said in a statement.

Some Democrats have threatened to add justices to the high court if they win the White House and control of the Senate after the Nov. 3 election.

Sen. Ed Markey (D-Mass.) called on fellow Democrats last month to “abolish the filibuster and expand the Supreme Court” if Senate Majority Leader Mitch McConnell (R-Ky.) went ahead and filled late Justice Ruth Bader Ginsburg’s seat during the election year.

Senate Democratic Leader Charles Schumer (N.Y.) isn’t ruling anything out although there doesn’t appear to be much support in the Democratic caucus for expanding the court.

“Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Schumer told colleagues in a call last month.

Democratic presidential nominee Joe Biden has dodged questions about whether he would support adding justices to the Supreme Court, though he said last week during a town hall event that he would make his position clear before the election. Biden has tied his position to how the Senate GOP handles Trump’s nomination to the court of Amy Coney Barrett. 

Trump nominated Barrett to replace Ginsburg after her death in September. The Senate GOP has moved to confirm Barrett before the election, though in 2016 it refused to grant a hearing to former President Obama’s nominee, Merrick Garland. 

Cruz and his GOP colleagues have also introduced a bill that would create a point of order against legislation modifying the number of justices on the Supreme Court.

It states that “it shall not be in order to consider a provision in a bill, joint resolution, motion, amendment” to modify the number of justices.

If passed, the presiding chair of the Senate would then decide if any bill or resolution violates the point of order against packing the court. A majority of senators, however, could vote to overrule the chair’s decision.