The House is expected to vote this week on a proposed constitutional amendment permanently setting the Supreme Court at nine justices, as Republicans point to Democratic proposals for expanding the court while Democrats call the measure an election-year show vote.
By yourNEWS Media Newsroom
The House is preparing to vote on a proposed constitutional amendment that would permanently set the U.S. Supreme Court at nine justices, moving the question of the court’s size from ordinary federal law into the Constitution.
H.J. Res. 1, introduced by Rep. Andy Biggs, R-Ariz., contains a single operative sentence: “The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices.”
Congress currently controls the number of Supreme Court seats through federal statute and can change it by passing legislation through the normal legislative process.
Biggs’ proposal would make nine justices a constitutional requirement. Any future effort to alter that number would require another constitutional amendment rather than a congressional majority and presidential approval.
House Majority Leader Steve Scalise, R-La., included the resolution among the chamber’s planned floor business for the week. House Democratic Caucus Chair Pete Aguilar, D-Calif., said Tuesday that he expected a vote Wednesday.
The proposal faces a substantially higher threshold than ordinary legislation.
Under Article V of the Constitution, an amendment must receive support from two-thirds of both the House and Senate before being submitted to the states. Ratification would then require approval from three-fourths of state legislatures, or 38 of the 50 states.
H.J. Res. 1 would give the states seven years from the date Congress submits the amendment to complete ratification.
Republicans Point to Proposals for 13-Justice Court
Republican supporters say the amendment is necessary because some Democrats have advocated expanding the Supreme Court beyond its current nine members.
Rep. Al Green, D-Texas, introduced legislation May 4 that would increase the court from nine justices to 13.
Green’s measure has no cosponsors and has not advanced out of the House Judiciary Committee.
Earlier versions of legislation known as the Judiciary Act, introduced by Rep. Hank Johnson, D-Ga., in 2021 and again in 2023, also proposed expanding the Supreme Court to 13 justices. Neither proposal received a committee vote.
Other Democrats, including former Vice President Kamala Harris, former Transportation Secretary Pete Buttigieg and Rep. Jim Clyburn, D-S.C., have also discussed increasing the court’s size.
The House Judiciary Committee report accompanying H.J. Res. 1 cites those proposals as part of the justification for placing the nine-justice structure into the Constitution.
Scalise’s office framed the vote as an attempt to protect the judiciary from partisan restructuring.
“Radical left Democrats and the [Democratic Socialists of America] want to politicize and restructure the Supreme Court, effectively destroying the constitutional safeguards our Founders put in place,” Scalise’s office wrote in its weekly schedule preview. “For years, Democrats have called for packing the Supreme Court with more left-wing judges and now the [Democratic Socialists of America] is going even further by calling to abolish the Supreme Court and replace it with a judicial system subordinate to Congress.”
The Supreme Court resolution is being considered during the same week as a separate measure introduced by Rep. Jeff Crank, R-Colo., condemning socialism and the Democratic Socialists of America.
Biggs Says Amendment Would Shield Court From Political Pressure
Biggs said after the Judiciary Committee approved the proposal in June that fixing the number of justices in the Constitution would help protect the court from political efforts to reshape it for ideological advantage.
“Our nation’s founders built a system of checks and balances to protect citizens from concentrated power—a central part being the U.S. Supreme Court, whose duty is to defend the rights and freedoms of every American, not to serve as a political tool for any party,” Biggs said.
“The judiciary was designed to be the quiet guardian of liberty, insulated from the passions of the moment. Unfortunately, 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 House Judiciary Committee approved H.J. Res. 1 on June 3 by a 15-8 vote.
No Democrat on the committee voted to advance the proposal.
Democrats Dismiss Vote as Midterm Messaging
Democratic leaders have characterized the amendment as a political exercise rather than a proposal with a realistic chance of becoming part of the Constitution.
Aguilar said Tuesday that he plans to vote against it.
“This is such a fake issue that Republicans are putting on,” Aguilar told reporters. “The American public aren’t asking about this. I went around the country, the vice chair did a bunch of travel, I did a bunch of travel. Nowhere, ever, are people saying, ‘You know what we should do? We should cap the number of Supreme Court justices.’”
Aguilar described the measure as part of a series of Republican floor votes intended to establish political contrasts ahead of the November midterm elections.
“I understand that Republicans are gonna try to put up votes—socialism vote, Supreme Court justices,” he said. “These are all just kind of show votes. Assuming that this passes a rule, I’ll vote no, because this is just a complete show vote.”
Asked whether calls by individual Democrats to increase the number of justices conflict with the party leadership’s position, Aguilar said House Democrats are focused instead on changing the court’s ethics and accountability rules.
“The argument among folks in our party is we want to reform the court, but we’ve said very clearly that that should be a code of ethics that they actually follow,” Aguilar said. “There needs to be real reform within the government side of what we do, and that’s every branch of government. Democrats have been loud and clear about that, and we continue to advocate for that, and we will when we’re in the majority.”
His comments echoed statements Democratic leaders made in May.
House Minority Leader Hakeem Jeffries, D-N.Y., and Democratic Caucus Vice Chair Ted Lieu, D-Calif., both said judicial changes would become a priority if Democrats win the House majority in November.
Lieu said a Democratic-controlled House would “usher in massive Supreme Court reform,” while Jeffries included “massive judicial reform” among priorities alongside changes to election and campaign finance laws.
Neither specified at the time exactly what Supreme Court changes they would pursue.
Raskin Says Congress Would Permanently Surrender Authority
Rep. Jamie Raskin, D-Md., the ranking Democrat on the House Judiciary Committee, challenged the constitutional amendment on different grounds.
In dissenting views included with the committee’s report, Raskin argued that the proposal is fundamentally about whether Congress should permanently give up its existing constitutional authority to determine the Supreme Court’s size.
“The question H.J. Res. 1 presents is not really about whether nine should suddenly become a magic number of justices for the Supreme Court,” Raskin wrote. “It’s about whether this Republican-controlled Congress—which has already surrendered congressional war powers, congressional taxing and tariff powers, and congressional spending powers to a president desiring to be a king—should now permanently relinquish another constitutional power that the Framers gave to us in Article I.”
Raskin also described the current court as “profoundly partisan and lopsided” and argued that Republicans are attempting to preserve its existing ideological balance.
He pointed to the Senate’s different handling of Supreme Court vacancies during former President Barack Obama’s final year in office and President Donald Trump’s first term as part of his criticism.
Raskin also argued that H.J. Res. 1 has little realistic prospect of clearing the constitutional amendment process.
Supreme Court Has Not Always Had Nine Justices
The Constitution itself does not specify the size of the Supreme Court, and Congress has changed the number of seats several times throughout U.S. history.
The Judiciary Act of 1789 established a six-member Supreme Court.
Congress passed legislation in 1801 that would have reduced the court to five justices, but the change was designed to occur through attrition after a vacancy rather than by removing a sitting justice. Congress repealed the law before a vacancy allowed the reduction to take effect.
The number changed repeatedly during the following decades.
At one point during the Civil War, the Supreme Court reached 10 members, the largest number of justices in its history.
Congress passed legislation in 1866 reducing the court toward seven seats through attrition and then established the current nine-member structure in 1869.
Nine has remained the statutory number ever since.
A Congressional Research Service report cited by the Judiciary Committee, “‘Court Packing’: Legislative Control over the Size of the Supreme Court,” notes that scholars disagree about the motivations behind the historical changes.
Some changes have been attributed to practical considerations, including the federal judiciary’s changing caseload and the number of judicial circuits, while others have been interpreted as attempts by Congress and presidents to influence the court’s composition.
Supreme Court justices historically had responsibilities for hearing cases in lower federal circuit courts, meaning the court’s membership was at times tied to the structure of the federal judicial system.
The Judiciary Committee’s Republican majority argued that after those circuit-riding responsibilities ended, expansion of lower federal courts no longer created the same practical reason to adjust the number of Supreme Court justices.
If H.J. Res. 1 receives the required two-thirds support in both chambers, states would have seven years to decide whether nine justices should become a permanent constitutional requirement. Without that supermajority support, the Supreme Court’s size will remain governed by federal statute, leaving future Congresses free to increase or decrease it through legislation.
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