With the start of the Supreme Court Term, the NYU Democracy Project is publishing several essays this week on the Court. The first of these, Enshrine Nine, comes from Ed Whelan, who argues for a constitutional amendment fixing the Court’s size at 9:

In our intensely polarized politics, each side expects the other side to escalate the conflict, and each therefore has an excuse to escalate first. It’s good to find a sensible opportunity to de-escalate.

Progressives who are upset by the conservative transformation of the Supreme Court are understandably tempted to press the next Democratic president and the next Democratic Congress to “pack the Court”—to add new seats in order to enable the president to establish a liberal majority on the Court. But such an effort, if it were to succeed in the very short term, would have severe long-term consequences: It would undermine the legitimacy of an institution essential to the rule of law. It would initiate a series of expansions that would destroy the capacity of the Court to operate as a deliberative judicial body. And, because it couldn’t happen without eviscerating the Senate’s filibuster, it would empower transient majorities in Congress to whipsaw the country between sweeping conservative and liberal agendas.

Now is the time to eliminate the temptation. Progressives should join with conservatives in adopting a constitutional amendment that would enshrine the number of Supreme Court justices at nine….

Even though Court-packing is deeply unpopular, a Democratic president who is blessed with Democratic majorities in the House and in the Senate would have difficulty resisting the temptation to resort to it. The same might soon be true for a Republican president with Republican majorities in Congress. Although talk of Court-packing has so far been almost entirely on the Left, it’s easy to see how a Republican president, whether frustrated by defeats in the Supreme Court or eager to perpetuate a conservative majority for years to come, might want to name several new justices to the Court….

The adoption of Court-packing legislation would also almost certainly require the abolition of the Senate filibuster—its rule requiring 60 votes for cloture on legislation. The Senate filibuster operates to ensure that transformative legislation has a very broad base of support. If it is abolished, we could face a new era of destabilizing swings from one end of the political spectrum to the other.

Progressives and conservatives can join together now to avert these dangers by supporting a constitutional amendment that states that there shall be nine seats on the Supreme Court.