A group of six House Republicans Tuesday will introduce a constitutional amendment aimed at setting the number of Supreme Court justices at nine in a reaction to calls from Democrats to pack the court and a commission ordered by President Biden to study the topic.
The proposed amendment, first obtained by Fox News, is sponsored by Rep. Mike Gallagher, R-Wis., along with Reps. Chris Jacobs, R-N.Y., Ken Buck, R-Colo., Mo Brooks, R-Ala., Ted Budd, R-N.C., and Markwayne Mullin, R-Okla.
Biden’s 36-member commission would study not just adding justices to the court but also other potential reforms as well, including “the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
But Republicans have said the commission is simply a disguise for a politically motivated effort to alter the Supreme Court. Senate Minority Leader Mitch McConnell called the commission a “direct assault on our nation’s independent judiciary.”
The constitutional amendment proposed by Gallagher would simply require that “The Supreme Court shall be composed of not more than nine justices.”
“We don’t need a commission to know court packing is a radical idea that would undermine confidence in one of our country’s most important — and trusted — institutions,” Gallagher said of the amendment. “The Supreme Court has been comprised of nine justices for more than 150 years, and it’s time we amend the Constitution to make this longstanding precedent permanent before it’s too late.”
The number of justices on the Supreme Court, along with the general composition of the federal judiciary, is set by Congress, according to the Constitution. That means as it stands there would be nothing unconstitutional about adding justices to the Supreme Court — that is firmly within Congress’ purview.
But the number of justices has been set at nine since shortly after the Civil War. A previous effort to pack the court by former President Franklin Delano Roosevelt, in light of its consistent rulings against his New Deal programs, was widely decried as an effort to violate the institution’s insulation from politics.
It was eventually abandoned after the court started ruling in favor of the New Deal. Biden called the court-packing effort a “bonehead idea” in 1983 when he was a senator. But now Democrats, upset about rulings against their priorities and the fact former President Trump was able to appoint three justices in just four years, are calling on Congress to “expand” the court so Biden can appoint more justices of his own.
Biden was asked repeatedly on the campaign trail about his stance on court-packing. He said he wouldn’t tell voters his opinion until after the election. But the president still has not said whether or not he supports court-packing since he was elected.
This idea was panned by liberal Justice Stephen Breyer last week in a speech to Harvard Law students and alumni, causing liberals to call for his retirement.
Breyer said he aimed “to make those whose initial instincts may favor important structural change, or other similar institutional changes, such as forms of court-packing, think long and hard before they embody those changes in law.”
“Our power, the court’s power, has to depend on the public’s willingness to respect its decision,” Breyer also said. “Respect even those decisions they disagree with… even when they think the decision is seriously mistaken.”
“That authority, like the rule of law, depends on trust… that the court is guided by legal principle, not politics,” he continued. “Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust. There is no shortcut.”
Late Justice Ruth Bader Ginsburg also opposed court-packing.
It’s unlikely that House Republicans’ proposed amendment will go anywhere soon. The constitutional amendment process is arduous, requiring two-thirds of Congress to support it and three-quarters of states to ratify it.
Congress’ control over the size of the judiciary has allowed it to grow to meet changing demands in workload, especially as the country grew. Congress most recently expanded lower courts under former President Carter.
Democrats that are for packing the Supreme Court, however, have made clear their efforts are political and not in response to the body’s workload.
“[T]o restore our democracy, we must expand the Supreme Court,” Rep Mondaire Jones, D-N.Y., tweeted. “Anything less would leave the future of our nation, our planet, and our fundamental civil rights at the whim of a far-right supermajority that is hostile to democracy itself.”
“We have never expected President Biden’s support to be a leading indicator of the traction we are gaining on the idea of court expansion. As with filibuster reform, support from party leadership will follow sustained pressure from the grassroots and the facts on the ground — in this case, additional bad rulings from Republican-appointed justices,” said Demand Justice, a group on the left dedicated to court-packing.
Fox News’ Marisa Schultz contributed to this report.