The House is in session this week before darting off again on another recess. The week’s marquee vote was a short-term resolution to avert a government shutdown ahead of the midterm elections. But alongside that bill on Tuesday’s schedule was a rarity: a proposed amendment to the Constitution up for a vote in the full House.
The proposed amendment is simple: ‘The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices.’’ The GOP leadership is likely putting this proposed amendment forward to demonize Democrats as being in favor of “court packing.” Whether the bill’s sponsors realize it or not, though, its very existence concedes something vital: The choice of how many seats are on the Supreme Court is entirely up to Congress.
Many Americans likely assume that the current size of the court is already enshrined in the Constitution. Article III, Section 1 is actually silent on the number: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Even the words “Chief Justice” aren’t mentioned anywhere within Article III. The job only exists by inference given Article I’s requirement “the Chief Justice shall preside” over presidential impeachment trials in the Senate. It instead fell to Congress, beginning with the Judiciary Act of 1789, to flesh out the powers and responsibilities that Chief Justice John Roberts now holds.
Its very existence concedes something vital: The choice of how many seats are on the Supreme Court is entirely up to Congress.
Supporters say the amendment is necessary to, as Bloomberg Government recently put it, “insulate [the Supreme Court’s] members from political pressure under threat of expansion.” The bill’s chief sponsor, Rep. Andy Biggs, R-Ariz., argued during a debate in June that his amendment is about protecting the Court’s independence.
“How can the Supreme Court protect Americans from government overreach if the same government can pack the court whenever it dislikes a ruling?” he asked his fellow Judiciary Committee members.
The proposal passed out of committee on a party-line vote: 15 Republicans for, eight Democrats against. Biggs, who is running for governor of Arizona, issued a statement afterward declaring that the “judiciary was designed to be the quiet guardian of liberty, insulated from the passions of the moment.” The Arizona Republican went on to say that “special interests have been increasing their attacks on the Court, threatening to pack this iconic American institution to ensure favorable outcomes for their causes.” The amendment, he concluded, “will protect the Court’s legitimacy, preserve the checks and balances that safeguard our cherished freedoms, and ensure every American’s rights remain secure – no matter who holds political power.”
Biggs makes several misleading assumptions in his claims during the committee debate and his statement after. First, he casts any talk of expansion as an assault on the Constitution and treats nine as the only number of seats that represents “legitimacy.” As I documented two years ago, “despite the backlash against President Franklin D. Roosevelt’s failed effort to add Supreme Court seats in 1937 that has kept such proposals at bay, history is well on the side of court expansionists.” Over its lifetime, the court’s membership has grown and shrunk multiple times, starting with six and growing as large as 10 members.
Each change has been at the discretion of Congress. The last time the court’s size shrunk was after the Civil War, when lawmakers reduced the number of seats from 10 to seven to winnow out the number of Southerners serving. Despite Biggs’ scolding, in fact, the makeup of the court has always been wrapped up in politics. A few years later, in 1869, the court was expanded to the present nine seats to align with the then-nine circuits that each justice oversees. Today there are 11 numbered circuits, plus the federal and District of Columbia circuits, giving plenty of reason beyond politics to expand the number of justices.
It’s also odd of Biggs to suggest the main role of the Supreme Court is to “protect Americans from government overreach.” That may be the current conservative majority’s goal — at least when a Democrat is president — but it is by no means inherent. Similarly, between the Supreme Court and Congress, the latter is by far the more democratic institution of the two. If duly elected lawmakers use their power to expand the court, it is will within their power and right to do so.
The momentum among Democrats for expanding the Supreme Court has only grown since the issue first resurged in 2021.
Biggs is right about one thing though. The momentum among Democrats for expanding the Supreme Court has only grown since the issue first resurged in 2021. Rep. Jim Clyburn, D-S.C., announced in an interview Sunday his support for expanding the court to 13 seats. As my colleague Steve Benen noted, the 17-term lawmaker “is widely recognized as a prominent voice representing the Democratic establishment.” House Minority Leader Hakeem Jeffries, D-N.Y., the likely next speaker should Democrats take the majority, has also thrown his weight behind major (though yet unspecified) reforms to the court.
Aside from the issues already outlined, the proposed amendment was always doomed to fail. Constitutional amendments require a two-thirds vote from both chambers of Congress to proceed to the states for ratification. There’s nowhere near enough support in the House for this amendment, let alone the Senate. The same is unfortunately true for a proposal from Maryland Democrat Rep. Johnny Olszewski to place term limits on the justices, which would open seats on a more consistent basis.
But intentionally or not, Biggs’ amendment confirms that Congress has the power to decide the makeup of the Supreme Court. While an amendment to place term limits on the justices might not be ratified anytime soon, a new law doing the same would suffice. And absent a change in the Constitution, there’s nothing stopping lawmakers from setting the court’s size to any number they see fit.
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