With several presidential candidates advocating more justices on the Supreme Court, should it be forced to remain at nine?
Since 1869, the Supreme Court has contained nine justices, but that number has fluctuated during American history.
At first, there were six justices. In 1807, that increased to seven. In 1837, that increased to nine. In 1863, that increased to 10. It was brought back down to seven in 1866. The status quo of nine justices has remained since 1869.
While the Court’s existence is required by the Constitution, the exact number of justices remains unspecified. The last serious attempt by an incumbent president to change the number was in the 1930s under President Franklin D. Roosevelt. The plan didn’t pass Congress.
Current Democrats are livid about what is now the first reliably conservative Supreme Court in decades, after Brett Kavanaugh’s confirmation last year. Presidential candidates including Kamala Harris, Beto O’Rourke, Elizabeth Warren, and Kirsten Gillibrand have all expressed support — or at least said they wouldn’t rule out — expanding the Court’s numbers.
What the constitutional amendment does
In response to this idea gaining steam on the left, a Constitutional amendment proposal on the right would officially make permanent the current nine-justice Supreme Court.
It was introduced in the House on March 25 at House Joint Resolution 53 by Rep. Mike Gallagher (R-WI8). It was introduced in the Senate the same day as Senate Joint Resolution 14 by Sen. Marco Rubio (R-FL).
What supporters say
Supporters argue that the amendment would maintain a status quo that — for all its faults — they say has generally done well for 160 years now. They also say that Democratic plans to expand the Court are just a partisan attempt to enact change they haven’t been able to get through electoral victories stemming from voters.
“Few schemes are as dangerous to the rule of law as court packing,” Rep. Gallagher said in a press release. “Americans rely on the Supreme Court to faithfully uphold the Constitution, and with Democrats’ partisan calls to increase the Court’s size gaining momentum, it is now more important than ever to preserve the legitimacy of the highest court in the land.”
“The Democrats’ court packing proposal represents the latest shortsighted effort to undermine America’s confidence in our institutions and our democracy,” Sen. Rubio said in a press release. “America’s institutions are far from perfect. But over the past two centuries, they have provided a framework for our nation to become the most dynamic, most vibrant, and most exceptional nation in all of human history.”
What opponents say
Opponents counter that changing the Court’s size — whether higher or lower — is a necessary protection built into the Constitution to prevent the institution from running amok.
“The framers left it up to Congress as a check on the court to determine the makeup of the court. And the reason for that was because there had to be some check on an out-of-control court, and Congress is that check,” advocacy group Pack the Courts; Executive Director Aaron Belkin told Slate. “And so, if you have a court that is out to subvert the very democratic basis of the country, as is the case today, it is not only allowable for Congress to step in — it is Congress’ job to step in and check the courts.”
“The progressive agenda is dead on arrival because of the Supreme Court,” Belkin continued. “[If] you don’t have a plan to protect your agenda from the Supreme Court, then you really can’t be taken seriously as a candidate. Because this court is so radical that it will not allow Congress to restore democracy and fix the problems that are plaguing this country.”
Odds of passage
The Senate version has 13 cosponsors, all Republicans. It awaits a potential vote in the Senate Judiciary Committee.
The House version has three cosponsors, all Republicans. It awaits a potential vote in the House Judiciary Committee.
Constitutional amendments face much higher thresholds for passage than ordinary bills. They must pass ⅔ of the House, ⅔ of the Senate, and ¾ of state legislatures. This plan would almost certainly fail in the current Democratic-controlled House.
In fact, it would almost certainly have failed in the 115th Congress as well despite Republican majorities in both chambers because neither of those majorities were large enough to reach the vote threshold. The slim majorities in each chamber common in the last decade suggest that passing any constitutional amendment is unlikely in the immediate future if similar patterns hold in each chamber.