WASHINGTON, D.C. - An ongoing legislative effort by Republicans in the U.S. House of Representatives to pass a constitutional amendment codifying the number of Supreme Court Justices at nine did not pass last week.
The latest proposal named House Joint Resolution 1, also known as the “Keep 9 Amendment” failed to receive a required two-thirds majority vote on Sept. 2, and was defeated with 212 “yes” votes and 206 “no” votes, according to congress.gov. All five of Oklahoma’s congressional representatives, Kevin Hern, Josh Brecheen, Frank Lucas, Tom Cole and Stephanie Bice, voted in favor of the amendment.
As expected, the vote went along party lines with the exception of one lone Democrat voting “yes.” Rep. Donald G. Davis (D-N.C.) broke party lines and cast a vote in favor of the proposed constitutional amendment.
The joint resolution was introduced by Rep. Andy Biggs (R-Ariz.) on Jan. 3, 2025, with text proposing that the Supreme Court of the United States be composed of nine justices consisting of one chief justice and eight associate justices, according to congress.gov. The 119th Congress, which is currently in session, spans the years 20252026. Two earlier versions of the proposal were introduced in 2021 and 2023, according to govtrack.us/congress/bills.
Debate
A one-hour debate was allowed in the House Judiciary Committee on Sept. 2, according to the full text of the Congressional Record located at congress.gov/congressional-record. The principal speakers were Biggs and Rep. Jamie Raskin (D-Md.). Newsweek magazine said in a late afternoon Sept. 2 online article that the resolution forced “lawmakers in both parties to publicly take a position on one of the judiciary’s most contentious political debates.”
During the debate, Raskin noted that the power to define the composition of the Supreme Court and the number of Justices who serve has rested with Congress since the beginning of the Republic under Article III, Section I. He also noted that over the course of U.S. history, Congress exercised their authority seven different times to change the number of Justices on the Court. The number has stayed at nine Justices since 1869.
“That is why the amendment before us is so important,” said Biggs. “It fixes the number of Justices at nine permanently. That is not because nine is a magic number. It is because a fixed Court cannot be expanded by whoever happens to win the next election. It makes the rule the same regardless of who is in power.”
Court-packing
A significant amount of the debate centered around the idea of “court-packing” - its definition and which presidential administrations in the past may have attempted such a maneuver.
“Packing the Court is not simply a policy disagreement. It is an attempt to change the structure of one of the three branches of government in order to guarantee the outcome you want,” Biggs said. “That is not reform. That is revolution.”
Rutgers Law School professor David Noll explained in an October 2020 article, published at rutgers.edu/news/ what-court-packing, that court-packing is a term used to describe changes to the size of the Supreme Court, but is better understood as “any effort to manipulate the Court’s membership for partisan ends.”
The Rutgers article was prompted, in part, by the confirmation of Supreme Court Associate Justice Amy Coney Barrett on Oct. 26, 2020 - eight days before the election by a partisan 52-48 vote. Speculation swirled as to whether Democrats would try to increase the number of Justices on the country’s highest court.
Barrett was nominated by President Donald Trump to fill the seat once occupied by the late Justice Ruth Bader Ginsburg. All Democrats and one Republican, Sen. Susan Collins (R-Maine), voted against Barrett, according to the article.
“Here is the question every American should ask: If a sitting majority can change the size of the Supreme Court the moment it dislikes rulings, what happens the next time the other side is in power? What stops them from doing the same thing?” Biggs asked, as recorded in the Congressional Record.
“As Justice Breyer said, this will start an ‘arms race.’ Once you go down that road, the Court stops being an independent check on government power. It becomes another political institution controlled by whoever happens to hold the majority,” he said.
Both Biggs and Raskin yielded short blocks of time for other legislators to speak on the issue before the vote was taken and the proposal failed.
Debi DeSilver is an award-winning, third-generation Oklahoma journalist whose writing career now spans 50 years. She can be reached at silvercitypublishing@ mailto:vercitypublishing@gmail.com gmail.com.