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Ted Cruz Supported an 8-Justice Supreme Court if Clinton Won in 2016. Now He’s Preemptively Striking Against Court Packing.


As Republicans rush to confirm Judge Amy Coney Barrett to the U.S. Supreme Court ahead of next month’s election, Texas Sen. Ted Cruz and several of his GOP colleagues will reportedly unveil a plan aimed at preventing Democrats from adding any additional justices to the bench, a process known as “court-packing.” Cruz claimed last week that seeking to manipulate the size of the court constituted “an abuse of power”; he quoted the late Justice Ruth Bader Ginsburg in defending the sanctity of the current nine-justice bench. He didn’t always believe that to be the case.

Under Cruz’s plan two-pronged plan, which will be publicly released Tuesday and was first reported by The Washington Post, he and five other Republicans will first propose a constitutional amendment “barring the contraction or expansion of the number of seats on the Supreme Court.” A second proposal would “bar any proposals to change the size of the Supreme Court from even being considered in the Senate unless two-thirds of its members agree.”

“Make no mistake, if Democrats win the election, they will end the filibuster and pack the Supreme Court, expanding the number of justices to advance their radical political agenda, entrenching their power for generations, and destroying the foundations of our democratic system,” Cruz said in a statement describing his proposals.

But following the death of conservative Justice Antonin Scalia in 2016, most Senate Republicans refused to even meet with then-President Barack Obama’s nominee Merrick Garland, saying the vacancy should be filled by the next president elected by the American people. Sen. Cruz took that position a step further, stating that if then-nominee Hillary Clinton were to win the election, the GOP should continue stonewalling any potential Democratic nominee indefinitely—leaving the highest court in the land to operate with only eight justices.

“There is certainly long historical precedent for a Supreme Court with fewer justices,” Cruz said after a campaign rally in 2016 when asked whether the Senate should hold a vote on a Clinton nominee. “I would note, just recently, that Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

Cruz’s previous support for an eight-justice Supreme Court also undermines his recent claim that having a ninth justice confirmed before votes are counted in November is critical to protect the integrity of the election.

Al Gore challenged the election results and for 36 days, the country was held in chaos. Well, if Joe Biden does that again this year […] an equally divided four-four court can’t decide anything,” Cruz said during an interview last month. “That could make this presidential election, drag on weeks and months and well into next year. That is an intolerable situation for the country. We need a full Court on Election Day, given the very high likelihood that we’re going to see litigation that goes to the court. We need a Supreme Court that could that can give a definitive answer for the country.”

[image via ABC News/YouTube screengrab]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.