The Republican senator Ted Cruz, whose party defied convention to delay then rush conservatives on to the supreme court, has introduced a constitutional amendment to stop Democrats expanding the court in response.
“The Democrats’ answer to a supreme court that is dedicated to upholding the rule of law and the constitution is to pack it with liberals who will rule the way they want,” Cruz said.
“The supreme court should be independent, not inflated by every new administration. That’s why I’ve introduced a constitutional amendment to permanently keep the number of justices at nine.”
There is no constitutional provision for how many justices sit on the court.
Democrats say the current court is not independent of the Republican party.
In 2016, when the conservative Antonin Scalia died Mitch McConnell, the Republican leader in the Senate, held the seat open until a Republican president, Donald Trump, could replace a Democrat, Barack Obama, and nominate Scalia’s replacement. Neil Gorsuch filled that seat.
In 2020, Democrats were helpless again when Ruth Bader Ginsburg, a liberal lion, died shortly before the presidential election and McConnell changed course, rushing Amy Coney Barrett on to the court before Trump lost to Joe Biden.
Those changes and the replacement of the retiring Anthony Kennedy with Brett Kavanaugh produced a court dominated, 6-3, by conservatives.
Conservative justices including Coney Barrett and Clarence Thomas have claimed not to be influenced by political considerations.
Coney Barrett notably did so, saying the court “is not comprised of a bunch of partisan hacks”, while standing next to McConnell at a political studies centre named for the Republican leader.
Among conservative rulings passed down by the new super-majority, a May 2022 decision saw the court side with Cruz in a case concerning personal loans to campaigns. The three liberal justices said the ruling paved the way for corruption.
But the Dobbs decision of last year, removing the right to abortion, most enraged Democrats and progressives.
On the left, plans have been floated to increase the size of the court and thereby redress its ideological balance.
Writing for the Guardian last year, David Daley, author of Ratf**ked: Why Your Vote Doesn’t Count, said: “The court’s hard-right majority has neither popular support for its agenda nor institutional legitimacy.
“It is the product of a hostile takeover of the courts 50 years in the planning by conservatives who have long understood that unpopular policies … can be thrust upon Americans by an unaccountable and unelected judiciary.
“The court must be expanded and reformed to counter a rightwing power play that threatens to remake American democracy and life itself.”
Biden ordered a commission to study options for reform. It found bipartisan support for term limits for justices but reported “profound disagreement” on whether the court should be expanded. Biden has said he is “not a fan” of expanding the court.
Cruz’s amendment has little chance of passing a Democratic-held Senate but 10 Republican senators supported it nonetheless.
Josh Hawley of Missouri said: “For years the left has been desperate to pack the court to promote their radical agenda. We must ensure that we stay true to the court’s founding principles, maintain the precedent of nine justices, and keep the Democrats from their brazen attempts to rig our democracy.”
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