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Tipsheet

Marco Rubio Moves to Keep Nine Supreme Court Justices in the Constitution

AP Photo/Juan Pablo Azabache

Sen. Marco Rubio (R-FL) introduced an amendment to the Constitution Monday to limit the number of justices on the Supreme Court to nine, a move that a senior aide to the senator said has been in the back of Rubio’s mind since fall 2018.

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Rubio’s move to preserve the court number came after Democrats in and outside of the 2020 presidential campaign said that they’d consider adding more justices to the nation’s highest court.

“I don’t think we should be laughing at it,” Mayor Pete Buttigieg of South Bend, Indiana said in February. “In some ways, it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today.”

2020 candidate Robert Francis “Beto” O’Rourke suggested that justices are divided up by political affiliation.

“What if there were five justices selected by Democrats, five justices selected by Republicans, and those ten then picked five more justices independent of those who chose the first ten?” O’Rourke said in March. “I think that’s an idea we should explore.”

Former U.S. Attorney General Eric Holder, Sen. Elizabeth Warren (D-MA), Sen. Kirsten Gillibrand (D-NY) and Sen. Kamala Harris (D-CA) all openly played with the idea of shifting the number of judges on the Supreme Court.

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"The Democrats' court packing proposal represents the latest shortsighted effort to undermine America's confidence in our institutions and our democracy. America’s institutions are far from perfect. But over the past two centuries, they have provided a framework for our nation to become the most dynamic, most vibrant, and most exceptional nation in all of human history,” Rubio said in a statement Monday. “To prevent the delegitimizing of the Supreme Court, I am introducing a constitutional amendment to keep the number of seats at nine. Our institutions matter. Our Constitution matters. And we should fight to protect them.”

Rubio is joined by Sen. Pat Toomey (R-PA) in supporting the amendment.

“Expanding the Supreme Court for partisan political reasons is a terrible idea,” said Toomey. “It would diminish the legitimacy of, and faith in, the institution as an independent branch of government. I hope my colleagues will join us in supporting this amendment to maintain the integrity of our nation’s highest court.”

Other supporters of the amendment include Sens. Kevin Cramer (R-ND), Marsha Blackburn (R-TN), Todd Young (R-IN), Cindy Hyde-Smith (R-MS), John Hoeven (R-ND), Mike Lee (R-UT), Ben Sasse (R-NE), Mitt Romney (R-UT), Mike Crapo (R-ID), Shelley Moore Capito (R-WV) and Steve Daines (R-MT).

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The Constitution doesn’t stipulate how many justices the Supreme Court must have. It is up to Congress to determine that number. Throughout American history, the number shifted from five to ten. The Judiciary Act of 1869 set the requirement to one chief justice and eight associate justices.

“The Supreme Court has functioned admirably for almost 150 years with nine justices,” Lee said. “To change that number now, for the barest of partisan reasons, would fundamentally delegitimize the Court and throw our entire constitutional framework into question. This amendment is a good common-sense step to make sure neither side takes this drastic and dangerous step.”

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