The U.S. House Committee on the Judiciary recently passed an Arizona congressman’s resolution to keep the number of Supreme Court justices at nine.
H.J. Res. 1 proposes amending the U.S. Constitution to require that the Supreme Court always have nine justices and no more than that number. If passed, this would be the 28th Amendment to the U.S. Constitution. To be adopted, the proposed amendment needs two-thirds support in both the House and Senate, followed by approval from at least 38 states.
U.S. Rep. Andy Biggs, R-Gilbert, the resolution’s sponsor, said America’s founders “built a system of checks and balances to protect citizens from concentrated power – a central part being the U.S. Supreme Court, whose duty is to defend the rights and freedoms of every American, not to serve as a political tool for any party.”
Article III of the Constitution established the Supreme Court, but lets Congress determine how to organize it. The Judiciary Act of 1789 put six justices in the court, and other laws changed the number until Congress decided there would be nine justices in the Judiciary Act of 1869. The number has stayed the same since then.
“The judiciary was designed to be the quiet guardian of liberty, insulated from the passions of the moment. Unfortunately, special interests have been increasing their attacks on the court, threatening to pack this iconic American institution to ensure favorable outcomes for their causes,” Biggs told The Center Square on Wednesday.
Democrats and Republicans have talked about packing the court, Biggs said. He explained that means expanding the number of justices “on the court and then make sure they’re ideologically in line with whoever’s proposing the packing scheme.”
He said Democrats “are pretty adamant” about wanting to expand the justices beyond nine.
Biggs added that there’s nothing new about people perceiving the Supreme Court as political. What makes him nervous, Biggs said, is when politically-minded people want other politically-minded people to become justices.
The congressman, who’s also a gubernatorial candidate in Arizona, said his resolution will preserve the “court’s legitimacy, preserve the checks and balances that safeguard our cherished freedoms and ensure every American’s rights remain secure – no matter who holds political power.”
Looking ahead, Biggs said he thinks he can get a vote on his resolution in the full House, but does not believe he has enough votes for it to pass.
Gabe Roth, executive director of Fix the Courts, said he did not think Biggs’ resolution had enough support to become a constitutional amendment.
According to its website, Fix the Courts is a nonprofit that advocates for the U.S. Supreme Court to be “more open and more accountable to the American people.”
Roth said his organization did not favor the resolution because it would interfere with Fix the Courts’ proposal to limit Supreme Court justices’ terms to 18 years via statue.
Federal law and Supreme Court precedent prevent the lifetime tenures of current justices from being ended, Roth told The Center Square.
Fix the Court supports a bill by U.S. Rep. Ro Khanna, D-Santa Clara, Calif., that would temporarily expand the court until it would have nine justices serving 18-year term limits, he noted.
The executive director said Biggs’ resolution would make it harder to enact term limits at the Supreme Court.
According to Roth, lifetime tenures don’t “make sense anymore.”
“The Supreme Court has way too much power to have individuals on it be serving 35 years,” Roth said.
He added that for the first 200 years of America’s existence, the average tenure of a justice was around 16 years.
Lifetime tenures are “anti-democratic” and “not what the [Founding] Fathers envisioned,” he said.
“The Supreme Court is a political animal like any other government agency,” Roth explained. “It needs to be treated as such, which means there should be some basic guardrails when it comes to the amount of time individuals can serve there.”
