The House votes on whether nine justices stay nine

H.J. Res. 1 would put nine in the Constitution. A statute is a toy. An amendment is a lock.

By Everett Kane

Not a statute. A constitutional amendment. H.J. Res. 1, from Rep. Andy Biggs of Arizona, is one sentence: “The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices.”

Nine is already the number. Congress put it there in 1869. Congress can change it with a simple majority. That is the whole point of the packing talk. A statute is a toy. An amendment is a lock.

Speaker Mike Johnson told reporters Tuesday he expects the resolution on the floor Wednesday. He is bringing it under suspension of the rules, which means two-thirds. Then the Senate. Then 38 states, seven years.

Johnson said the Democratic Socialists want to pack the Court. “We’re gonna make sure that doesn’t happen.” “Nine justices has worked well.” Expanding it, he said, risks a “political palooza.”

Caucus Chair Pete Aguilar told reporters he will vote no. He called it a fake issue and a show vote. “The American public aren’t asking about this.” He said the caucus wants a code of ethics, not more seats. Then he added Democrats will advocate for that “when we’re in the majority.”

They always do this. They say packing is not the program until they need four more votes. Rep. Al Green of Texas filed a bill May 4 to go to 13. No cosponsors. Earlier Judiciary Act bills from Rep. Hank Johnson of Georgia in 2021 and 2023 wanted 13 too and never got a committee vote. Rep. Jim Clyburn on Meet the Press last weekend: “13 is a pretty good number. A baker’s dozen would be a good number to have on the court.” Former Vice President Kamala Harris said 13 on July 31 in Nashville.

Ranking Democrat Jamie Raskin wrote that nine is not a magic number, and that Republicans would be giving up an Article I power. He is half right. The number moved with politics before: six in 1789, as many as ten in the Civil War, seven in 1866, nine in 1869. After circuit riding ended, there was no honest reason to keep moving the chairs.

Packing is not reform. It is a majority shopping for a result. If nine is only a statute, the next majority will add seats until the opinions come out right. Put it in the Constitution. Then argue ethics, or terms, or nothing. Do not pretend a baker’s dozen is architecture.

The Judiciary Committee already passed this 15-8 on June 3. No Democrat voted to send it to the floor. Aguilar expects Wednesday. File the amendment. Keep the nine.

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