Proposing An Amendment to the Constitution of the United States to Require That the Supreme Court of the United States Be Composed of Nine Justices
Floor Speech
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Mr. BIGGS of Arizona. Mr. Speaker, I move to suspend the rules and pass the joint resolution (H.J. Res. 1) proposing an amendment to the Constitution of the United States to require that the Supreme Court of the United States be composed of nine justices.
The Clerk read the title of the joint resolution.
The text of the joint resolution is as follows: H.J. Res. 1
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification: ``Article --
``The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices.''.
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Mr. BIGGS of Arizona. Res. 1.
Mr. Speaker, the Supreme Court's job is to tell the American people the truth about the law, even when that truth is unpopular, even when a President doesn't like it, and even when Congress doesn't like it.
That only works if the Court is independent. Alexander Hamilton expressed this in Federalist 78. He explained that the courts must be insulated from the political branches or they cannot do their job of protecting the rights of the people.
Disagreeing with the Supreme Court is not just legitimate. It is American. We amend the Constitution, or we pass new laws. We elect Presidents who appoint different judges. That is how you change outcomes you don't like. That is the process the Founders gave us. But there is a world of difference between changing the law and changing the rules of the game because you don't like the last call.
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.
That is not reform. That is revolution.
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?
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.
We have already seen what this kind of rhetoric looks like. In 2020, Senator Schumer stood outside the Supreme Court and told Justices Gorsuch and Kavanaugh: `` . . . you have unleashed a whirlwind, and you will pay the price.'' That was a threat, a threat that goes well beyond any normal policy disagreement.
Mr. Speaker, 2 years later, an armed man was arrested outside Justice Kavanaugh's home. Thankfully, law enforcement intervened before anyone was hurt.
Words have consequences, and when political leaders convince people that the Supreme Court is illegitimate, some people take that rhetoric seriously.
Some on the left aren't even hiding where this leads. The Democratic Socialists of America now openly call for abolishing the Senate and replacing the Presidency and the Supreme Court. I am not making that up. That is in their platform.
Seeking to expand the Court is an admission that your arguments have not been good enough to persuade voters or your fellow legislators. We rely on a political process, including robust one-on-one debates, to convince voters that ours are the superior plans.
When you can no longer convince enough voters that you have the best ideas, you have two choices: You can go back to voters with a better argument, or you can try to change the system so their vote doesn't matter as much.
That is why the amendment before us is so important. 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.
To my friends on the other side of the aisle: We don't have to like every decision the Supreme Court makes. Heaven knows there are plenty of decisions I have disagreed with. That is not the point. The point is whether we are willing to live under a Constitution that limits our power even when we are the ones holding it.
If we want to change the law, we can change the law, but we should not change the Supreme Court simply because we don't like the people sitting on it.
Constitutional government requires accepting outcomes we don't like and fighting for change the right way: through elections, through legislation, and through the amendment process this very body is using today.
Let's keep the Supreme Court independent. Let's keep it at nine Justices, and let's keep the Constitution bigger than whoever happens to be in power.
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Mr. BIGGS of Arizona. I get it, that the gentleman does not like Donald J. Trump and that this is an ideological position he is taking, which is kind of what the scholars have said is the definition of Court packing. When you want to increase the number of people on the Supreme Court so you can effectuate your ideological bent, yes, that is Court packing.
This isn't new, this position that we are taking today. This was introduced in the 116th, which was under Donald Trump. It was introduced in the 118th, which was under Joe Biden. By the way, it was Joe Biden's own special commission that said it would be wrong to actually increase the number of people on the Supreme Court. Now, we have introduced this in the 119th.
I do appreciate the gentleman talking about Arizona needs representation on the Supreme Court. I also think we need representation in the Ninth Circuit--it would be nice if you could help us along there--the circuit, a court that actually goes from the equator to the Arctic Circle. You can't even get an en banc there because they have 29 justices, appellate judges. You can't get an en banc in the Ninth because it is all random.
Anyway, back to the point here, my colleagues on the other side tell us that the Supreme Court has changed before. They are right. However, there is an important piece of history that they leave out. For much of the 19th century, the size of the Supreme Court was tied to the size of the Federal judiciary. As the country expanded and Congress created new judicial circuits, Congress added Justices to help carry those responsibilities, but that changed in 1869.
Congress fixed the Court at nine Justices, and for more than half of the length of this country, it has been nine Justices, regardless of the number of circuits.
There is one historical example that matters most to the question before us today, and that is Franklin Roosevelt who, in 1937, after winning reelection, was furious that the Supreme Court had repeatedly struck down parts of his New Deal as unconstitutional. That was the birth, perhaps, of the attempt to have an imperial executive.
Instead of changing laws to comply with the Constitution, he proposed changing the Court. His plans would have allowed him to add up to six new Justices, and who would appoint those Justices? The President of the United States would. Who was the President? Franklin Roosevelt.
Everyone understood what was happening. It wasn't about building a better courthouse. It wasn't about adding circuits. It wasn't about helping manage expanding judicial caseload. It was about changing the composition of the Court for ideological purposes.
Here is what happened: The plan faced fierce opposition, including from members of Roosevelt's own party. Chief Justice Charles Evans Hughes pushed back. The Senate ultimately rejected the plan, and this is what they said--this is from the records today: ``We recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle.'' Not holding firm at nine, but because you wanted--not you, but the Democratic Party at that time--not even the Democratic Party, excuse me, let's be very clear, one individual, Franklin Delano Roosevelt.
``It is a proposal without precedent and without justification,'' they said. ``It would subjugate the courts to the will of Congress and the President and thereby destroy the independence of the judiciary, the only certain shield of individual rights.''
``It points the way to the evasion of the Constitution and establishes the method whereby the people may be deprived of their right to pass upon all amendments of the fundamental law.''
``It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.''
Do you know what ``it'' was, the measure that they were so offended by? It was an attempt to pack the Court.
Next time, I will probably start reading all the folks on the other side who want to do that very thing.
Mr. HARRIS of North Carolina. Mr. Speaker, I thank my colleague from Arizona (Mr. Biggs), for his leadership in this.
Mr. Speaker, I rise today in support of H.J. Res. 1, which proposes an amendment to the Constitution that would require the Supreme Court of the United States to be composed of nine Justices.
This action will uphold the Court's legitimacy, protect the checks and balances that defend our fundamental freedoms, and ensure that every American's rights will remain protected, regardless of who holds political power.
For decades, we have heard calls from those unhappy with the ideological balance of the Supreme Court to pack the Court. The alarming rise of such calls should worry all of us because their objective is not to uphold ethical principles or even to protect individual rights but rather to consolidate power and intimidate the Court.
Our Founders understood that liberty cannot survive when power goes unchecked. They therefore built a system of checks and balances, with an independent Supreme Court serving as a critical safeguard for the rights and freedoms of every American. The Court's role is not to advance a political party's agenda but to uphold the Constitution and protect liberty even when doing so means standing apart from the passions of the moment.
At a time when our Supreme Court is facing ongoing and escalating attacks, Congress must and can act to defend it.
Mr. Speaker, I am proud to support this proposed amendment, and I urge all my colleagues to support maintaining the integrity of the United States Supreme Court.
Mr. Speaker, I do think it is a charming and quaint argument to say that President Trump has packed the Court.
Here are some patterns that you need to know just from the last term alone: 50 percent of the cases decided were decided unanimously. That doesn't sound like a packed Court, and only 5 of 57 cases, just 8 percent, were decided 6-3 with six Republican appointees on one side and three Democrats on the other. Ninety percent of the 57 cases were decided with at least one liberal Justice in the majority, 90 percent.
The three liberal Justices voted together in fewer than one-quarter of the nine unanimous cases. That doesn't sound like packing. That sounds like a lot of thoughtful folks on the United States Supreme Court rendering decisions they believe in and they believe comprise constitutional opinion.
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Mr. BIGGS of Arizona. Mr. Speaker, I get a kick out of their arguing about following the constitutional tradition and talking about using the constitutional system. That is exactly what we are doing. We are using the constitutional system. This is not the first time this has been offered. This has been used multiple times.
Mr. JOHNSON of South Dakota. Mr. Speaker, I thank the gentleman from Arizona for yielding.
Mr. Speaker, today's debate has convinced me more than ever that we need to cap the number of Supreme Court Justices at nine.
Now, for the last 5 years, I have been a leader in this push to keep the nine, and I am thrilled we are taking this measure up today.
In Washington, we have a habit of weaponizing everything for political advantage. Seemingly no norm is safe, and indeed prominent leaders on the other side of the aisle have promised us that they will pack the Court with four more Supreme Court Justices when they regain power.
Now, the size of the Supreme Court should not be an arms race. It should not swell after an election to be able to grab some additional political power. That is the stuff of banana republics and authoritarian regimes.
By the way, I am not making that up. You can look across the globe in recent history and you can see Hungary increasing their court to 15. You can see Turkiye increasing their court to 17. You can see Venezuela increasing their court to an eye-watering 32 justices in the pursuit of political power.
This is not a theoretical threat. Let's look to history.
For 150 years, nine Supreme Court Justices have served us well. The gentleman from Maryland indicates that there is no possible reason that somebody could support nine as the right number. Actually, Supreme Court Justices support nine as the number. They think that is the right size of the Court to have a collaborative, deliberative, functional Court. That is the Goldilocks spot, and it is not just conservative Justices who say it. Retired liberal Justice Stephen Breyer said nine was the right number, and Ruth Bader Ginsburg, before her death, said nine was the right number.
They are joined by thousands of legal minds across the political spectrum. That, the gentleman from Maryland should know, is the right reason to set nine.
Today, we have an opportunity, Mr. Speaker, to heed those bipartisan calls, to remove a weapon in the hands of partisans, to defend and to protect a longstanding judicial norm, and to place the number of Supreme Court Justices as nine in our Constitution.
Mr. Speaker, I support the measure before us today. Let's keep the nine.
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Mr. BIGGS of Arizona. Hageman).
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Mr. BIGGS of Arizona. Boebert).
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Mr. BIGGS of Arizona. Mr. Speaker, may I inquire as to how much time is remaining.
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Mr. BIGGS of Arizona. Mr. Speaker, I am prepared to close and reserve the balance of my time.
Mr. Speaker, I appreciate the consternation my colleague across the aisle has when he says that he hasn't found any arguments persuasive.
Let me tell you something: He would never find any of these arguments persuasive because he wants to pack the Court. His very argument is that if you pass a constitutional amendment, you can never change the Constitution. It is absolutely one of the most specious arguments I have heard because if you amend the Constitution, guess what. Does that mean that that amendment itself, that you have brought in, can never be amended again? No, because the system is clear, the system that he has been arguing against this entire time. The system, the Constitution itself, allows us to say to the American people: We would like to amend the Constitution. We are going to give it to you. We think this should be done.
Mr. Speaker, that is really what we are talking about here. We are talking about this failure to appreciate the position that they sit in. They say that this whole thing, quite frankly, has been about Donald Trump. That is what their whole argument against this has been.
Oh, they passed this immunity clause. Where did that come from? Well, maybe stare decisis. That is what they argue. That is where the Court is. Take a peek at that. Yes, go back and read it. You will enjoy it.
Here is the deal. They sit right now upset over a few decisions that this Supreme Court has made. They cannot accept that you have probably three conservatives, three liberals, and three in the middle. That is where the Court sits today.
An amendment freezing this at nine, first of all, doesn't mean that you can never amend it again, but it also doesn't mean that these are going to be the same nine in perpetuity for eternity.
They want to set aside a tradition that has been in place for over 150 years.
They make this argument regarding the circuits. Guess what. Those circuits have changed and changed, but oddly enough, we have kept it at nine. Instead, they want to negate and have ignored what their personnel have said for the last few years, ever since Donald J. Trump was reelected, ever since you put some new people on the Court, even though, as we take a look, they are winning cases against this administration.
Yet, they say that we have to take and expand this so we can get to 13. That is what they want. Why do they want it? It is because they want to make it progressive. They want to turn the Court around. They want to change its ideological principles or what they perceive to be ideological principles.
That is what they want. They want to pack the Court. That is what packing is. It is where you put a number there. That is why Stephen Breyer said and that is why Ruth Bader Ginsburg said, no, don't do that.
Justice Breyer said that if you do that and it is 13 next time, does it become 21 after that, or 50, or where does it end, because it becomes a political arms race at the Supreme Court.
We are saying not to get into a political arms race. Let's make it permanently nine. Let's give it to the voters. That is a rational thing. It will never be persuasive to these folks, and that is too bad because guess what. This has been comfortable. The Biden administration was comfortable with nine.
This particular provision was proposed in the 116th Congress, in the 118th Congress, and now again in the 119th Congress. It didn't matter whether there was a Republican or a Democrat in the White House. What it meant was let's make sure the Supreme Court is protected from those who want to change it ideologically. That is where they are. That is why everyone should be supporting this particular amendment.
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