House Democrats Block Amendment to Lock the Supreme Court at Nine

The House on Wednesday rejected a proposed constitutional amendment that would have locked the Supreme Court at nine justices. H.J.Res. 1 failed 212–206 under suspension of the rules, short of the two-thirds majority required. The roll call was No. 293. Rep. Andy Biggs (R-Ariz.) sponsored the measure, which would have added this sentence to the Constitution: “The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices.” The Court has had nine seats since 1869. Congress has changed the Court’s size by statute seven times since 1789; the number is not fixed in the Constitution now. Even if the House had passed the resolution, it would still have needed two-thirds of the Senate and ratification by 38 states.

Speaker Mike Johnson put the amendment on the floor a day after the House adopted a resolution denouncing socialism. He told reporters Tuesday that Democrats should “put their money where their mouth is” after Democratic Socialists of America-aligned candidates and some House Democrats discussed expanding or subordinating the Court. After the vote he said, “Defending the integrity of the Supreme Court shouldn’t be a controversial vote.” Rep. Mike Bost (R-Ill.) said DSA-backed candidates had won primaries “on the promise of ‘packing’ the U.S. Supreme Court” and compared the idea to Franklin Roosevelt’s 1937 plan, which split his party in 1938. Biggs told the House a fixed number prevents a majority from expanding the Court “the moment it dislikes its rulings.”

House Minority Whip Katherine Clark’s office instructed Democrats to vote no. “This proposed constitutional amendment would permanently fix the number of Supreme Court justices at nine, stripping Congress of yet another constitutional authority that is meant to be controlled by the American people’s representatives,” the whip notice said. Clark also wrote that Congress has historically changed the Court’s size and that the resolution was “not a serious effort” on affordability or other issues. Rep. Jamie Raskin (D-Md.) called the vote “profoundly partisan.” Rep. Pete Aguilar (D-Calif.) called court size a “fake issue” timed to the midterms. The only Democrat recorded in favor was Rep. Don Davis of North Carolina. About 205 Democrats voted no. Several members did not vote. Henry Cuellar of Texas, who had said he opposed court-packing, voted against the amendment.

The Judiciary Committee had reported the resolution on a party-line vote in June. Some Democrats have separately backed adding four seats so the Court would match the number of regional appeals circuits. The DSA platform calls for a judiciary “subordinate to Congress.” Tuesday’s anti-socialism resolution passed 220–192, with eight Democrats joining Republicans. The two roll calls now sit one day apart on the record heading into November.