Former Dem Officials Rally Against Court Packing

Ex-Dem AGs, Reps. call on party to repudiate efforts to add justices

Opponents of Supreme Court nominee Judge Amy Coney Barrett demonstrate outside the U.S. Supreme Court / Getty Images
October 15, 2020

More than a dozen former Democratic officials have joined a campaign to thwart any attempt to pack the Supreme Court.

Fifteen Democrats—nine former state attorneys general and six ex-congressmen—are backing the Keep Nine Coalition. The bipartisan group opposes recent efforts by progressive Democrats to expand the Supreme Court in the event that Democratic presidential nominee Joe Biden wins the election. Biden has staunchly refused to state his stance on court packing, going so far as to argue voters do not deserve to know where he stands on the matter.

Andrew Miller, the former Democratic attorney general for Virginia, said he was alarmed that many of his partymates have warmed to the idea in the wake of President Trump's nomination of Amy Coney Barrett to succeed Ruth Bader Ginsburg on the Supreme Court. He expects the pressure to grow if Democrats capture the Senate and White House in November. Miller, who also serves as the president of the Keep Nine Coalition, said any move in that direction will undermine the rule of law.

"I think the effort will be made—assuming Joe Biden wins the presidency—to pack the court and to increase its number, probably by adding two or three justices," he said. "I think that would be a terrible decision for the future of the Court and the future of the country."

Court packing has rapidly gained credence in progressive Democratic circles as a way to retaliate against the likely confirmation of Barrett in the Republican-controlled Senate. Senate Minority Leader Chuck Schumer (D., N.Y.) has threatened that "everything is on the table" if the Republicans confirm Barrett, and several Senate Democrats including Sens. Elizabeth Warren and Kirsten Gillibrand have also voiced support for court packing during the presidential primaries. But despite the idea's popularity in elite circles, the vast majority of Americans—including the late Justice Ginsberg—oppose the expansion of the Supreme Court.

The Keep Nine Coalition launched before the death of Ginsberg this year. The bipartisan group—which also includes 10 Republican former legislators and attorneys general—supports a constitutional amendment to specify that the Supreme Court must be composed of nine justices. The group enlisted Democratic Rep. Collin Peterson (Minn.) and Republican congressman Denver Riggleman (Va.) to introduce the amendment in the House in January.

The Constitution does not specify the number of Supreme Court justices and gives Congress the authority to decide the size of the Court. However, the size of the Supreme Court has remained constant since the 19th century. Attempts to expand the Court in the 20th century, most notably by President Franklin D. Roosevelt, faced widespread public opposition.

Nick Rahall, a former Democratic congressman and a member of the coalition, said he hoped that the amendment would insulate the Supreme Court from the partisan politics of the day, and thus maintain its uniquely high level of trust among public institutions.

"It certainly made a great deal of sense to me ... for Congress to pass the keep-nine amendment to the Constitution," he said. "In my opinion, it is an effort to preserve the independence of our U.S. Supreme Court and to reduce the cycle of retaliation that is so prevailing in our American political life.… I think it is that cycle which has destroyed the public trust in all of our public institutions."

According to a recent poll commissioned by the coalition, more than three out of five Americans support an amendment to specify the number of Supreme Court justices. Paul Summers, the former attorney general of Tennessee, said the poll is indicative of widespread public opposition to court packing.

"There's an old expression that we have heard, mostly in the South, but it's probably all over: 'If it's not broken, don't fix it.' [The Supreme Court] hadn't been broken in 151 years. Let's make a decision here—let's create a firewall to keep it nine," he said.

Update 10/15/20, 8:45 AM: A previous version of this post incorrectly stated that Paul Summers is a member of the Federalist Society.