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Ivey leads letter to Biden telling him to leave SCOTUS at nine justices

The Constitution establishes the Supreme Court, but does not set the number of justices, nor does it forbid Congress from enlarging the Court.

Facade of US Supreme court in Washington DC on sunny day

Alabama Governor Kay Ivey led a letter, which was signed by 19 of her fellow colleagues, to President Joe Biden, stating their opposition to increasing the number of Supreme Court justices. It has been nine justices since 1869, but now some on the left are encouraging Biden to support expanding the court.

“Court packing is Washington Democrats’ attempt to make the U.S. Supreme Court a bench of activists pushing their agenda,” Ivey said. “To simply put it, increasing Justices would be unprecedented, unproductive and unpredictable. I have the highest respect for the U.S. Supreme Court and the grave responsibility these nine individuals have, which is why I strongly oppose any change to the number of Justices on the bench. I am proud to lead this letter with 19 of my fellow governors. I urge President Biden to put down any partisan pressures and withdraw consideration from any proposal to pack the court. Let’s ensure that we protect the integrity of the U.S. Supreme Court and that of our country.”

“The American form of government is one that depends on the sovereignty and cooperation of states,” Ivey and the other governors wrote. “Each term, the Supreme Court hears criminal and civil matters that are critically important to our states and to the people we represent. Historically, cases before the Supreme Court have served as the last legal defense of state sovereignty, protecting states and our citizens from federal overreach. As Governors, we have a vested interest in ensuring that our nation’s highest court remains independent and free from political pressure or partisan power grabs.”

“In April, you signed an Executive Order to form the Presidential Commission on the Supreme Court of the United States to explore reforming the Court, specifically including the consideration of court packing,” the Ivey et. al. letter continued. “Opposition to the composition or past decisions of our Court should not be the impetus for radical change to a bedrock branch of our nation’s government. We urge you to withdraw this proposal from consideration. Legal scholars from across the country and on both sides of the political aisle agree that court packing will breed perpetual court packing—it will never be enough. Each partisan shift will result in seats added to the Court until the Court has lost not only its independence but its authority. The end result of court packing would lead to inconsistent rulings that undermine the legitimacy of the Court and fail to guide our nation and serve our states.”

The Alabama Republican Party passed a resolution at their winter meeting in February urging support for an amendment to keep the Supreme Court at nine justices.

“The practice of ‘packing the Court’ for political advantage greatly decreases confidence that the Supreme Court exists as an essential element of America’s system of checks and balances, which guarantees and protects a citizen’s constitutional rights,” the resolution reads. “In order to prevent all attempts by the legislative and/or executive branches of government to change the number of Supreme Court justices, the ‘Keep Nine Amendment’ to the United States shall be composed of nine justices.”

The “Keep Nine Amendment” was introduced as Senate Joint Resolution 76 in the United States Senate in October by Sen. Ted Cruz, R-Texas, and is supported by Sen. Tommy Tuberville, R-Alabama. The Republican National Committee has also passed a keep nine resolution.

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The “Keep Nine Amendment” was also introduced as House Joint Resolution 95 in the House of Representatives in September with bipartisan sponsorship by then-Rep. Collin Peterson, D-Minnesota and Denver Riggleman, R-Virginia. Congressman Mo Brooks, R-Alabama, has co-sponsored that resolution.

Republican insider and Alabama Republican Executive Committee member former state Rep. Perry Hooper Jr. was one of the sponsors of the resolution.

“The United States has had a nine-member Supreme Court for almost 150 years and before deciding who to vote for in this presidential election, I urge you to consider the impact of the progressive wing of the Democrat Party who is insisting the first order of business is to pack the Supreme Court,” Hooper said. “Court Packing does not mean that the President replaces current Justices who retire or die. Court Packing means that the President and a Liberal Legislature adds seats to the Supreme Court until they are able to control the outcome of cases heard by the Court, thus imposing their political philosophy on the outcomes of cases.”

“Attempts to pack the court are not new,” Hooper said. “Democrat President Franklin Roosevelt proposed it after the Supreme Court declared many of the plans of his ‘New Deal’ unconstitutional. Roosevelt wanted to add six new justices. But his plan fell apart, as the Senate Judiciary Committee, even though it was Democrat-controlled, declared the plan ‘an invasion of judicial power such as has never before been attempted in this country.’  Roosevelt’s plan was defeated in the Senate by a vote of 70 to 20. It remains very unpopular today according to a New York Times poll.”

The Constitution establishes the Supreme Court, but does not set the number of justices, nor does it forbid Congress from enlarging the Court. In fact, during the nation’s history, Congress has changed the number of justices, both increasing and decreasing, seven times prior to 1869, often for the purpose of gaining political advantage for a then-current political position.

Brandon Moseley is a former reporter at the Alabama Political Reporter.

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