Kansas Attorney General Derek Schmidt signed onto a bipartisan constitutional amendment proposal to set the number of U.S. Supreme Court Justices to nine and prevent court packing. The suggested amendment is needed to prevent politics from damaging the independence of the judiciary, Schmidt said in a press release.

If adopted, the amendment would add to the Constitution, “The Supreme Court of the United States shall be composed of nine justices.”

Kansas Attorney General Derek Schmidt

The number of Supreme Court justices has been frozen at nine since 1869. The Constitution is silent on the number of justices on the nation’s highest court. Congress has the authority to change the size of the bench. Some opponents to swiftly replacing Justice Ruth Bader Ginsburg, who died Sept. 18, have suggested adding to the Court if Judge Amy Coney Barrett, Trump’s replacement nominee, is confirmed prior to the election.

U.S. Representatives Collin Peterson, D-Minn., and Denver Riggleman, R-Va., are co-sponsors of a resolution for the “Keep Nine” amendment. In a letter of support to the Congressman, Schmidt said the amendment is necessary to protect the integrity of the Court.

“Twice in the past century — once in 1937 and again today– cries to pack the court by adding more justices for the purpose of diluting the influence of those already seated have risen to the fore of our nation’s discussion,” Schmidt wrote. “The intent and effect of those cries have been to challenge the Supreme Court’s independence in exercising judgment in cases and controversies before it.”

In 1937, President Franklin D. Roosevelt advanced an initiative to pack the court by adding six additional justices, after the Court repeatedly struck down parts of Roosevelt’s New Deal. Congress rejected his proposal then, but Democrats are recommending packing the Court once again in response to Barrett’s nomination.

A U.S. Senate committee completed Barrett’s confirmation hearings last week, and the full Senate is set to vote on it by the end of this month. Her confirmation is likely to shift the balance of the high court. 

“The passions of the moment must not be allowed to undermine the independence of our Supreme Court,” Schmidt wrote in the letter.

Schmidt has argued three cases before the U.S. Supreme Court. He says the Constitution already provides mechanisms for public and political considerations to shape the composition of the Court. In a press release, he said voters can change the composition of the Court by electing Presidents who nominate the Court’s members when there are vacancies and by electing Senators who confirm the President’s nominees.

Amending the U.S. Constitution requires a two-thirds majority approval from members of the U.S. House and Senate and then approval of three-quarters of U.S. state legislatures for ratification.

“I hope the House of Representatives and the Senate will see fit to advance it for consideration by the state legislatures so the American people, through the constitutional amendment process, can decide for themselves whether threats of court-packing should remain an option available to Congress,” Schmidt wrote. “I, for one, think it should not.”

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