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House Democrats voted Wednesday to block a constitutional amendment that would permanently lock the Supreme Court at its current nine justices, apparently deciding that nine is perfectly acceptable as long as Democrats retain the option of making it 13 or more later.
The amendment, introduced by Rep. Andy Biggs (R-AZ), needed a two-thirds majority because, inconveniently, it would actually amend the Constitution. It received 212 votes to 206, falling well short of the required threshold, with all but one House Democrat voting against it.
The proposed amendment was remarkably straightforward. It would state, “The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices.”
Biggs explained that the amendment was necessary because Democrats [aka progressives, aka leftists] have increasingly expressed dissatisfaction with a Supreme Court that occasionally issues rulings they do not like, leading some on the left to propose the time-honored solution of simply adding enough new justices until the correct answer appears.
“If a sitting majority can change the size of the Supreme Court the moment it dislikes its rulings, what happens the next time the other side is in power? That’s why I’m urging my colleagues to support my resolution for a Constitutional Amendment to permanently fix the number of Supreme Court Justices at Nine,” he said.
House Minority Whip Katherine Clark (D-MA) urged Democrats to reject the amendment, arguing that permanently keeping the Court at nine justices would deprive Congress of the ability to change the number whenever circumstances, election results or disappointing judicial opinions make it necessary.
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| Comrade Clark |
“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 leftist argued, adding that discussing the size of the Supreme Court could distract Congress from more pressing matters such as affordability, which apparently has nothing to do with the number of Supreme Court justices.
Of course, the Constitution itself does not specify how many justices should sit on the Supreme Court. Congress has historically handled that little detail.
The Judiciary Act of 1789 established the Court with six justices. Congress added a seventh in 1807, increased the number to nine in 1837, and then added a tenth during the Civil War in 1863.
Congress subsequently reduced the number to seven in 1866, partly to prevent President Andrew Johnson from filling vacancies. In 1869, the Judiciary Act restored the Court to nine justices, where it has remained ever since.
That consistency apparently became suspicious.
Back in the 1930s, President Franklin Roosevelt proposed adding as many as six additional justices to the Court after the existing justices repeatedly ruled against portions of his New Deal agenda. The proposal became known as the infamous court-packing plan, although it might more accurately be described as an early attempt to discover how many Supreme Court seats were required to produce the desired constitutional interpretation.
The plan generated enough backlash, including from members of Roosevelt's own party, that it was eventually abandoned.
Nearly a century later, however, court packing has returned, this time with considerably less embarrassment.
“I think that we are in a position now that calls for some significant actions taken by the Congress, and we ought to expand,” Rep. James Clyburn (D-SC) said. “Thirteen is a pretty good number. A baker’s dozen would be a good number to have on the court. And I would hope we would get people on the court who will follow the constitutional underpinnings of this great nation of ours.”
Nothing says respect for the constitutional underpinnings of the nation quite like ordering a few extra Supreme Court seats from the judicial bakery.
Former Vice President Kamala Harris has also indicated support for a 13-member Court, suggesting that the idea is gaining momentum among Democrats who apparently view the current nine justices as less of a constitutional institution and more of an insufficiently large focus group.
Rep. Don Davis (D-NC) was the only Democrat to vote for Biggs' amendment. Rep. Kevin Kiley (I-CA), who normally caucuses with Republicans, voted against it.
For now, therefore, the Supreme Court remains at nine justices.
Not because Democrats have suddenly concluded that nine is the ideal number.
Not because they have discovered some timeless constitutional principle requiring it.
And certainly not because they have decided that voters should not be able to change the Court's composition through the creative use of congressional arithmetic.
The Court remains at nine because, for the moment, Democrats do not have the votes to make it larger.
Should the political winds change, however, Americans can apparently expect the nation's highest court to undergo the same basic transformation as a congressional seating chart: If you don't like the outcome, simply add more chairs until you do.
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