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CBOR-SC: The Supreme Court Amendment

The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight Associate Justices, any six of whom shall constitute a quorum.

COMMENTARY:

Article III, Section 1 of the U.S. Constitution reads, “The judicial power of the United States, shall be vested in one Supreme Court,” but aside from the mention of a Chief Justice in Article I, Section 3, the Constitution says nothing about how many other judges (called Associate Justices) shall sit on the Court, or how many Supreme Court Justices must be present to hear or render a decision on a case (i.e., a quorum). Those numbers are left for Congress to determine.

Under the Judiciary Act of 1789, the original Supreme Court consisted of a Chief Justice and five Associate Justices, for a total of six (with a quorum of four). For political reasons, that number has fallen (to as low as five) and risen (to as many as ten) over the years, until the Judiciary Act of 1869 set the total number of Justices at nine (with a quorum at six), where it has remained for 150 years.

No serious threat to the 1869 Judiciary Act’s decree was contemplated until 1937, when President Franklin Roosevelt, frustrated by the conservative nature of that era’s Court which impeded the passage of his New Deal programs, suggested a bold plan to reconstitute the Court more to his liking. Under his proposed Judicial Procedures Reform Bill of 1937, a new seat would be added to the Court for every sitting Justice at or over the age of 70 — a move that, given the composition of the Court in 1937, would have increased the number of Justices at the time from nine to a whopping fifteen. The bill, which came to be known as Roosevelt’s “court-packing” plan — (Don’t like how the Court is ruling? Pack it with judges who’ll vote your way!) — failed in Congress, but the threat alone was substantial enough to make the Supreme Court more lenient toward Roosevelt’s New Deal policies in future rulings.

In recent decades, the specter of “court-packing” has risen repeatedly as modern progressives, in the spirit of Roosevelt, have grown discontent with how the Supreme Court has ruled. The cries for “court-packing” have increased to deafening proportions since the 2016 election of President Donald Trump, who has so far been privileged to appoint two Justices to the Court — Neil Gorsuch and Brett Kavanaugh — and, should he win a second term in 2020, reasonably stands to appoint at least one more. Trump’s appointment of two young Justices (and possibly a third someday) to the bench threatens for literally decades to come the progressive tendency to wield the Supreme Court to usurp Congress and the state legislatures’ roles as representatives of the people who determine the morality of social issues such as capital punishment, marriage, abortion, and civil rights. It’s far easier for progressives to have five out of nine Supreme Court Justices strike down the established social order from the bench than move legislation through Congress and the several States — easier still to add more Justices who will rubber-stamp a progressive agenda upon America.

Adding fuel to the “court-packing” fire is the growing influence of identity politics, in which every person (and Justice) is primarily considered not as an individual thinker but rather as a representative of his or her own demographic group. Supreme Court Justice Sonia Sotomayor has herself expressed a judicial strain of identity politics, arguing that a “wise Latina woman” would bring a different perspective to legal interpretation than people of other demographics — a slap in the face to the notion that laws are to be interpreted apart from one’s personal bias. (It is precisely because Justice Clarence Thomas has consistently voted according to his views on jurisprudence, not according to what would benefit African-Americans most, that he has been called a “sellout” (ad) by progressives: In their eyes, Justice Thomas is not there to be a good judge; he’s there to be “the black judge”.)

When you consider all the different demographic identities that progressives would call upon the Court to satisfy — white, black, latino, Asian, Jewish, Arab, gay, straight, asexual, pansexual, cisgender, transgender, male, female, nonbinary, able-bodied, disabled, etc., etc. — it’s easy to imagine a nightmare scenario in which progressives demand a Justice not only for every possible group identity but, thanks to the rise of intersectionalism, every possible combination of those identities. And that nightmare scenario — one in which identity politics wholly replaces unbiased interpretation of the law according to its text and original intent — is one we cannot afford.

The Supreme Court Amendment makes the decree of the Judiciary Act of 1869 into Constitutional bedrock, cementing our 150-year-old tradition of a nine-Justice Supreme Court (and a quorum of six). By finally laying to rest the constant threat of progressive “court-packing” schemes, the Supreme Court Amendment shall keep the highest court in the land safe from undue political influence.

Note: As of this writing, the Supreme Court Amendment is also the only Amendment of the Cultural Bill Of Rights to have been proposed (in part) by members of Congress. In March of 2019, Senator Marco Rubio (R-FL) and twelve other Republican Senators introduced Senate Joint Resolution 14 (PDF), which would set the maximum number of Supreme Court Justices at nine.

The Cultural Bill Of Rights
–CBOR-7Y: The Seven Years Amendment
–CBOR-RF: The Religious Freedom Amendment
–CBOR-2A: The New Second Amendment
–CBOR-CP: The Capital Punishment Amendment
–CBOR-ED: The Eminent Domain Amendment
–CBOR-17: The Senate Restoration Amendment
–CBOR-SC: The Supreme Court Amendment
–CBOR-QV: The Qualified Voters Amendment
–CBOR-AR: The Anti-Reparations Amendment
–CBOR-GS: The Gender Standardization Amendment
–CBOR-MS: The Marriage Standardization Amendment
–CBOR-PM: The Protection of Minors Amendment