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

In this 119th Congress we have watched the President's followers in Congress surrender to the President one constitutional power after another.

Amazingly, the Speaker and the MAGA party have abdicated nearly every single essential power that the Framers exclusively vested in us, Congress, the Representatives of the people. First is the power to declare war, which has been usurped by the President with catastrophic results for the country and without a peep from his sycophants in Congress.

Next is the spending power, the power of the purse, the power to appropriate Federal dollars to spending and grant programs and to specify their purposes, powers that have been continually violated in acts of impoundment, nullification, and redirection by the President who has not only effectively shut down the Department of Education, USAID, and the Consumer Financial Protection Bureau, but has even helped himself, without any appropriation from Congress, to $1.8 billion of taxpayer money to give away to Proud Boys, Oath Keepers, and other convicted insurrectionists who attacked this body in order to try to overthrow a Presidential election in January of 2021;

Next is the power to impose tariffs and taxes and the power to regulate commerce with foreign nations, powers that have been ripped away from us without any protests from the majority so the President could launch preposterous trade wars against the world and aggressively insult and alienate our beloved neighbor and democratic ally Canada.

They have abandoned even the power to decide whether or not the President should receive Presidential emoluments, gifts, payments from foreign governments as he piles up a pirate's treasure of hundreds of millions of dollars in gifts from foreign autocracies and monarchies.

They have abandoned the unquestioned exclusive congressional power of Congress to build and exercise control over needful buildings and structures for the national government like the White House; the Reflecting Pool, which they are now calling the strait of warm ooze; and The Kennedy Center. All of these structures are being bulldozed, demolished, desecrated with Presidential graffiti, and renovated according to unilateral and independent executive decisions without even congressional consultation--all for the first time in American history.

They are dangerously ceding our power to regulate the times, places, and manner of Federal elections conducted in the States to the post office and to our monarchically minded President who has no constitutional role in elections and was impeached by this Chamber for inciting a violent insurrection to try to overthrow an election, which he lost by more than 7 million votes, 306-232 in the electoral college.

So what constitutional power do our colleagues propose to surrender today? Well, it is just a power that Congress has had since the beginning of the Republic under Article III, Section 1: the power to define the composition of the Supreme Court and the number of Justices who serve there.

Over the course of our history, Congress has exercised this authority seven different times by changing the number of Justices on the Court.

With the Judiciary Act of 1789, Congress established the first Court with six Justices. In 1801, President Adams and Congress shrank it to five Justices.

When President Jefferson won in 1800 and came back to power, then it was back to six Justices.

In 1807, Congress expanded it to seven Justices when it created the Seventh Circuit, keeping to the congressional tradition of one Justice per Federal Circuit.

In 1837, Congress expanded the number of Federal Circuits to nine and then added the corresponding two seats to the Court, bringing the Court to nine Justices.

In 1863, Congress briefly added a 10th Federal Circuit during the Civil War and added a 10th Justice, giving Lincoln one more to appoint.

In 1866, Congress went back to seven Justices.

In 1869, President Grant and Congress increased the Court to nine again with another Judiciary Act, again, matching the number of Justices to Federal Circuits. That is the tradition of circuit riding.

Today, we still have nine Justices, although we have 13 Federal judicial circuits, the vast majority of which are not represented by even a single Justice among the nine currently serving on the Supreme Court.

In fact, the floor leader from Arizona has not only no Justices from his State on the Supreme Court, there are no Justices from the Ninth Circuit Court of Appeals, which has 67 million Americans living there.

Five of the Justices today come from the New York City metropolitan area, basically one for each borough. Is it really possible that there are not people from other parts of the country who could effectively and honorably serve on the Supreme Court?

Well, if we decided this on an originalist basis, we might move to place 13 Justices on the Court to match our 13 Federal circuits or we might go to 6 Justices, which was the original number there.

However, MAGA's proposal is to strip Congress of all authority in the matter, to freeze it and cement it permanently in the constitutional architecture for all time, with the suddenly magic number nine.

This is odd. Nine is neither the number of Federal circuits we have-- that is 13--nor is it the original number of Justices Congress placed on the Court. That was 6. Therefore, what is going on here?

Well, surprise, surprise, America, it is another partisan power grab by MAGA, our colleagues who fear for the results of the November election, as their policies have brought us nothing but war, inflation, corruption, lawlessness, and a $40 trillion debt, one-quarter of it supplied by this Presidential administration.

The MAGA party wants to cement into place a profoundly partisan and lopsided 6-3 Roberts Court that was gerrymandered and engineered by Mitch McConnell after the untimely deaths of Justice Scalia and Justice Ginsburg, each in the final year of a Presidential term.

After Justice Scalia died on February 13, 2016, President Obama nominated my constituent, Merrick Garland, to fill the seat. Senator McConnell did not even allow hearings in the Senate Judiciary Committee, much less a vote in the committee, much less a vote on the floor. He said he wanted to let the people decide, and 11 months was too close to the next election; forgetting, I suppose, that President Obama had won one of those genuine constitutional 4-year terms in office.

That seat sat open for a record-setting 422 days before they filled it with Justice Gorsuch. In other words, they were for an eight-Justice Court during that year, but when Justice Ruth Bader Ginsburg died on September 18, 2020, less than 2 months before the election, when early voting had already started in some States, Senator McConnell rushed through confirmation hearings and then a final vote for Amy Coney Barrett just 8 days before the 2020 Presidential election took place, laughing about this glaring disparity in treatment, acknowledging what everyone knew: Well, that 1-year rule was just for the Democrats. They were very happy to barrel through that nomination at the last moment.

Now, by essentially stealing these two seats from the American people, MAGA has put four of the five seats in the ruling majority rightwing faction in the hands of Justices appointed by two Presidents who lost the Presidential popular vote--George W. Bush in 2010 and Donald Trump in 2016.

The rightwing capture of the Court, fueled by corporate dark money and the Citizens United decision, has plunged this Court into a legitimacy crisis, an ethics crisis, and a jurisprudential crisis like has never been seen before in American history.

Trump's followers in Congress now seek to freeze into place the political Court that MAGA built for decades to come. Thus, they urge us to give away another critical power that the Framers vested in us.

As gas and diesel prices soar out of control and Trumpflation spirals up for groceries, healthcare, housing, as Trump's reckless and forever war of choice in Iran spirals downward, and America increasingly stands isolated in the world, MAGA wants to impose a straitjacket clamp-down on our democracy, our freedom, and our constitutional rights.

The Roberts Court overthrew Roe v. Wade and destroyed the constitutional right of women to comprehensive healthcare in every State in the country. It demolished the Voting Rights Act in Shelby County v. Holder in 2013, and the Callais decision just this term. Also, these fraudulent textualists invented out of thin air Presidential immunity from prosecution for felony crimes committed in office.

In Federalist 51, Madison said that the major safeguard against tyranny and despotism in America would be the natural identification and loyalty that Members of Congress would show to our own branch of government. We would stand up for ourselves, Madison thought.

``Ambition must be made to counteract ambition,'' he wrote, but today's Republicans show no loyalty to the constitutional architecture of Congress, to our rights, our prerogatives, our powers. They are content just to keep their heads down, to close up shop, to go home as early as possible just to keep their jobs so the President will not mobilize social media and Elon Musk's money against them in a primary. They want to preserve their survivability, their marketability. What a humiliating and spectacular collapse of the tradition of congressional self-respect and constitutional patriotism.

I urge every colleague in this body to oppose this ridiculous constitutional amendment and giveaway of congressional powers, and I reserve the balance of my time.

The floor leader offers a charming and completely self-defeating argument when he goes to the Roosevelt plan. FDR was a President, and Congress rejected his plan.

The gentleman acknowledges that Congress has changed the size of the Supreme Court seven different times, and we have also declined to change it several times.

Now, he describes what Roosevelt wanted to do as Court packing. This is Court packing on steroids. The gentleman wants to say that this President happens to like the people on the Court right now, through all of the packing and stacking and gerrymandering that has taken place in the last few years, and therefore we should freeze it, not just only for his own term but for all time. That is extraordinary.

In the meantime, they have not offered a single argument to explain why nine Justices should be the number that we constitutionalize and place in cement forever.

Mr. Speaker, I will try to answer the interesting questions raised by my distinguished colleague, Mr. Jordan, in seriatim.

First of all, anything that we do to try to improve the fortunes and the well-being of the American people, our colleagues call socialist. They call Social Security, Medicare, and Medicaid socialist. That is just water off our back.

The President talks about communists. The only communists on Earth today are his best friends and his role models, like Kim Jong-un, who he writes love letters to, and President Xi, who he has praised more than two dozen times in public.

How about Vladimir Putin, who he follows around like a puppy dog? Vladimir Putin was head of the KGB. If there is a problem with communism, it is over on that side of the aisle.

The gentleman legitimately asked the question: Why did the former chair of the Judiciary Committee, Mr. Nadler, advocate for an increase of four seats on the Supreme Court--which we are not debating today? What we are debating is whether Congress should have the power to do anything, to increase or reduce the size. He asked about that. It is a legitimate question. I will tell you exactly why.

The gentleman may be unfamiliar with the history here, but Congress has traditionally linked the number of Justices on the Court to the number of Federal circuits. We have 13 Federal circuits. His proposal was to go from 9 to 13.

Even the gentleman's beloved Ninth Circuit--which I think he is supposed to be representing in some sense--would be represented on the Supreme Court. We could have one Justice from each Federal circuit. That is what circuit riding was all about. You don't need some conspiracy theory to explain it. He was very overt about why he wanted to go from 9 to 13, which we could discuss another day.

Here the question is whether we should nullify, obviate, and destroy our own power to decide who should be on the Court. Still, the gentleman has not offered one single argument explaining why the number nine should be magic other than it cements into place all the decisions of this rightwing Roberts Court.

Scanlon), the distinguished ranking member of the Subcommittee on the Constitution and Limited Government.

By ``leftwing socialist group,'' I assume the gentleman is referring to the Framers of the Constitution. It is the Framers who set up the system. They are trying to overthrow the system that the Framers created. The Framers gave Congress the power to control the number of Justices on the Court.

Where does the number nine come from? I still await a single positive argument for why we should inscribe into law forever the number nine as the number of Justices we should have and nullify the power that the Framers of the Constitution and the Founders of the country gave to us.

Stansbury).

Mr. Speaker, I will add to the remarks of the distinguished gentlewoman, this point: It is interesting that our colleagues suddenly want to dabble in constitutional amendment politics. Nobody is crying out for this, as my colleagues have argued, but you know what people want by 85 percent? People want the equal rights amendment. Where is the Republican Party on that? They used to support it.

Three-quarters of Americans, more than 75 percent, want to overturn Citizens United by a constitutional amendment, which transformed every corporate treasury in America into a dark money political slush fund. We want to get rid of that. How come they are not here today on that?

How about a constitutional amendment on the right to vote or abolishing the electoral college and giving us a national vote for President? We have commanding popular majorities that want all those things.

Yet, they come forward with a constitutional amendment no one is talking about where you need two-thirds of the House, two-thirds of the Senate, and three-quarters of the States. You can measure the sincerity of this whole proposal by virtue of the fact that there is no national movement for it in any way.

This is, again, another little bone that is chucked over toward the White House to show them that they want to freeze into place the vanishing power of Donald Trump.

Mr. Speaker, the gentleman quotes me as having said that I said there was no possible reason that someone would want nine. No, I didn't say that at all.

I think there might be a number of reasons. One very clear one is they want to freeze into place the majority they have in the Court right now, a majority that was created by the most suspect political maneuvers on the Senate side. The gentleman would like to lionize the number nine and place it in cement.

Why wasn't it nine when Senator McConnell blocked any confirmation or vote on a replacement for Justice Scalia after he died? He kept it at eight for an entire year in order to get to the next administration so they could put Justice Gorsuch in instead of my constituent, Merrick Garland, who is one of the most talented people ever nominated to the Supreme Court. He was the chief judge of the D.C. Circuit, and they kept him off. Eight was fine with them then. Now, they want to go to nine because President Trump likes it just fine.

Mr. Speaker, quickly, just as Congress has exercised its authority seven different times to reduce the size of the Court or increase the size of the Court according to appropriate historical circumstances, it has rejected numerous proposals to do that, including in the famed Court-Packing Plan.

I don't know why our colleagues insist on thinking that FDR's field proposal is somehow an argument for giving our power away. We exercised our power properly in that moment.

The gentlewoman from Wyoming refers to the Democratic political program. I am not sure what she is referring to, but it is certainly the opposite of the GOP political program of endless war, inflation, corruption, illegal tariffs, and billion-dollar ballrooms.

Mr. Speaker, I am moved by the remarks of the distinguished gentlewoman from Colorado. It seems to me if it doesn't make money for the Trump family, they call it socialist. That is interesting, especially when it is President Trump who is taking large pieces out of American corporations, like Intel. No other American President has done anything like that. He is, obviously, the state socialist and hanging around and palling around with every communist dictator on Earth.

Again, we have not heard a single positive argument for why we should cement for all time nine as the number of Justices on the Supreme Court. I am beginning to conclude that there simply is no argument.

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Mr. RASKIN. Mr. Speaker, may I inquire as to how much time is remaining.

Mr. Speaker, finally, a serious argument. I thank the distinguished gentleman, the former attorney general of Kansas, for responding.

First of all, he describes this as the Keep Nine Amendment. If you want to keep at nine, you don't need a constitutional amendment. You just make that argument in Congress, just like people argued in prior centuries to keep it at ten or keep it at six or let's move to seven, so we don't need to freeze it into the Constitution.

Secondly, he says that this should be a bipartisan issue. It should not be partisan. Agreed. We should have a bipartisan commitment to the handiwork of the Framers. It is in the Constitution that it is up to Congress. Yet, the gentleman leaves us by saying: Well, we are actually going to turn it over to the people to decide whether to revoke this power that the Framers invested in Congress.

Of course, that is what it would mean to amend the Constitution. Why would we want to do that? We have dealt with this in a responsible way throughout American history. We are suspicious that our colleagues first gave away the war power to the President.

Then they give away the spending power by letting him just abolish entire agencies and entities, like the Consumer Financial Protection Bureau, USAID, and the Department of Education.

Then they give the President the power over tariffs, which we have because we have the power to regulate commerce domestically and internationally, and he imposed the largest tax in American history unilaterally. That is what a tariff is. It is not a tax on China or any other country. It is a tax on our businesses and our people.

Now we are in a trade war with Canada. If you travel to the north of Michigan in the Upper Peninsula, you go to the Boundary Waters of Minnesota, you go to the Adirondacks in New York, the small businesses are crying out for help because Canadians are boycotting us because of the whimsical, irrational, and deranged trade policies of this administration.

We have real problems to deal with. We don't really need to be giving away the powers of Congress and upsetting the proper balance of powers that was set by the Framers originally.

Mr. Speaker, one still searches in vain for a single justification for why we would surrender and abdicate yet another power that Congress has in the Constitution, this time freezing it into the cement of constitutional architecture for all time, that there will be nine Justices.

Mr. Speaker, they haven't even explained what that means. For example, let's say another Senate decides to do what Mitch McConnell did and hold a seat open for a year. Now that we have written a number into the Constitution for the first time, does that mean that the Supreme Court can't meet or can't vote? It is a serious question.

In other words, can the Supreme Court not operate if it doesn't meet the magic number of nine? They haven't told us, which shows this is just frivolous political confetti that is being thrown into the air. It is not an attempt to really think through the powers of Congress, the powers of the Court, and so on.

My friend from Kansas said that the Court shouldn't be a political football, and I agree with him about that because there are important things entrusted to the Court, like the freedom of speech, the freedom of the press, and due process, all things under attack by this administration.

Their gerrymandered Supreme Court, well, they have done all right sometimes, not as good as the district courts and the appeals courts have done. We have won more than 80 percent of the cases against President Trump in those courts, which is why they have been calling for the impeachment of judges, including Republican-appointed judges like Judge Boasberg, who was appointed by President Bush. They have called for his impeachment. That is making a political football out of it.

We have had colleagues who have put up posters to impeach this judge and impeach that judge. They wanted to have a hearing about it in the Judiciary Committee, where they are talking about it. That is making a political football about it.

I think we can all be intellectually honest. We know after Brown v. Board, the right-wingers, the anti-integrationists said to impeach Earl Warren, and the Republican platform for decades had language attacking the Supreme Court for Roe v. Wade.

People have a right on all sides of the political spectrum to express what they feel about the Supreme Court, but why suddenly should we amend the Constitution of the United States to revoke our own powers simply because President Trump happens to like this Supreme Court and they voted for his immunity from felony crimes committed while in office, the so-called textualists and the so-called originalists.

Where do you see in the Constitution anything about the President having immunity? When the Framers wanted to write immunity into the Constitution, they did it, like through the Speech and Debate Clause for Members of Congress. Maybe that is what they are going to want to give up next, the Speech and Debate Clause protecting us from prosecution by the executive branch for saying things that he doesn't like.

That is not in the original Constitution. The President has it, but they made it up. Where did that come from? The stork brought it. They invented it.

They call themselves originalists. It wasn't in the Federalist Papers. It wasn't in the original Constitutional Convention records. It is not in any of the ratified convention records. Where did that doctrine come from? They made it up.

Mr. Speaker, we all can argue about what the Supreme Court does, but nobody yet has made a single satisfactory argument about why we should freeze, for the first time in American history, the number of Justices at nine when it has always been up to the Representatives of the people in the House and the Senate.

Let me just close on that thought. The Senate already gets some say over the Supreme Court by rendering the power of advice and consent. The only power we have is the power they want to give up.

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Mr. RASKIN. Mr. Speaker, on that I demand the yeas and nays.

The yeas and nays were ordered.

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