A recent attempt by House Republicans to permanently establish the Supreme Court's composition at nine justices fell short of the required supermajority for a constitutional amendment. The proposed amendment, H.J. Res. 8, which aimed to explicitly fix the number of justices at nine, was defeated in a 212-206 vote. The effort was met with overwhelming support from Republicans, while Democrats largely voted against it, with a single Democrat, Rep. Don Davis of North Carolina, supporting the measure. An Independent representative who caucuses with Republicans also voted against it, and 15 members abstained.
The debate surrounding the Supreme Court's size is rooted in historical congressional actions and constitutional interpretations. The number of justices has not always been fixed at nine. In 1863, during the Civil War, Congress increased the number of justices to 10 to allow President Abraham Lincoln to appoint a Unionist justice. Three years later, after Lincoln's assassination and the start of Reconstruction, Congress passed a law in 1866 to reduce the number of justices to seven through attrition, a move seen as an effort to prevent President Andrew Johnson from making nominations. This occurred shortly after Congress passed the Fourteenth Amendment in June 1866.
The Fourteenth Amendment was ratified in July 1868, establishing guarantees of due process, privileges or immunities, and equal protection under the law. Following the amendment's ratification, Congress passed the Judiciary Act of 1869, which Ulysses S. Grant signed into law. This act established the Supreme Court at nine members, where it has remained for 157 years.
Arguments presented by proponents of the amendment suggest that the historical sequence of events, including the passage of the Fourteenth Amendment and the subsequent Judiciary Act of 1869, implicitly embeds the number nine within the concept of due process of law. They contend that altering this number would require a constitutional amendment, citing President Franklin D. Roosevelt's unsuccessful attempt to expand the Court in 1937 as further evidence of resistance to changing its size.
Opponents of the recent amendment, predominantly Democrats, express concerns that the Republican-led effort aims to prevent future ideological shifts in constitutional law. They argue that Democrats, concerned about their ability to win and hold the presidency long enough to shape the Court's jurisprudence through appointments, are seeking to adapt constitutional law to reflect their views. This perspective suggests that the current number of justices allows for a gradual evolution of legal interpretations, a process that can take decades, as seen in the overturning of Roe v. Wade by the Dobbs decision.
Republicans contend that proposals to expand the Court are a radical move by the Democratic Party's activist base, which they characterize as anti-constitutional. They argue that injecting a significantly larger number of justices with a different judicial philosophy could lead to an immediate and irreversible overhaul of established legal precedents. Concerns have been raised that such an expansion would violate the due process guarantee of the Fourteenth Amendment and undermine the separation of powers and judicial independence.
The failed amendment highlights the deep partisan divide over the Supreme Court's structure and its role in interpreting the Constitution. The debate is expected to continue as a prominent issue in political discourse.