House Democrats voted on Wednesday to block a constitutional amendment that would lock the size of the Supreme Court at nine justices — as it has been since 1869.
Because the proposed measure would amend the U.S. Constitution, two-thirds of the House would have to vote in favor for it to pass. Thursday’s vote count, at 212-206, failed to reach that threshold — and all but one House Democrat voted against it.
Rep. Andy Biggs (R-AZ) introduced the proposed amendment, which would read, “The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices.”
The need for such an amendment, he said, stemmed from the growing number of Democrats who were displeased with the current makeup of the Supreme Court and have suggested expansion as a means of making it more “fair” (read: tipping it leftward).
“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.
But House Minority Whip Katherine Clark (D-MA) pushed her fellow Democrats to vote “no” on the measure.
“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,” she argued, adding that spending time talking about the size of the court would also distract from other business like addressing affordability.
The size of the court, which has been officially nine since 1869, is not outlined in the Constitution and has traditionally been left up to Congress to determine. The Judiciary Act of 1789 initially set the court’s size at six justices — but it has changed several times in the years since.
In 1807, a seventh justice was added to accommodate new western circuits as the nation expanded. In 1837, Congress increased the court to include nine justices. A tenth was added during the Civil War in 1863, but Congress reduced the court back to just seven in 1866 — a move designed to prevent then-President Andrew Johnson from making any appointments to the high court. The Judiciary Act of 1869 brought the number back to nine.
In the 1930s, in an effort to get around a conservative Supreme Court and push his New Deal policies, then-President Franklin Delano Roosevelt proposed a plan to add as many as six justices to the court — but the backlash, even from his own party, forced him to reconsider.
In recent years, however, more and more Democrats have come around to the idea — and many are openly calling for it.
“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.”
Former Vice President Kamala Harris also suggested that she was on board with the idea of a 13-member Court.
Rep. Don Davis (D-NC) was the only Democrat to vote in favor of the amendment. Rep. Kevin Kiley (I-CA) voted against it despite normally caucusing with Republicans.
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