Republicans' attempt to cap Supreme Court at nine justices fails in House vote

A proposed amendment to the United States Constitution has fallen short, after Republicans attempted to cap the number of seats on the nation’s Supreme Court.

On Wednesday, the House of Representatives failed to advance a joint resolution championed by Republicans that would have permanently limited the court to its current number of justices: nine.

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The amendment’s final vote, which was mostly along party lines, was 212 in favour and 206 opposed.

A simple majority is needed to pass most legislation in the House, but constitutional amendments require two-thirds support.

Representative Don Davis of North Carolina was the only Democrat to vote in support of the amendment, while independent Representative Kevin Kiley of California, who caucuses with Republicans, voted against it.

The vote comes a day after the House voted 220 to 192 in favour of adopting a resolution condemning socialism. Eight Democrats joined with Republicans to advance the measure.

US House Speaker Mike Johnson on Wednesday took to social media to chide Democrats who voted against the two bills.

“For members of Congress who swore an oath to support and defend the Constitution, condemning socialism and defending the integrity of the Supreme Court shouldn’t be a controversial vote,” Johnson wrote on X. “Sadly, for today’s Democrats, they are.”

Both efforts effectively amount to messaging exercises by Republicans, who are attempting to put their Democratic counterparts on the record as not denouncing socialism and any Supreme Court expansion.

The manoeuvres come less than two months before November’s pivotal midterm elections, which will decide which party controls the chambers of Congress.

Some Democrats have called to add justices to the nation’s highest court to counter its conservative supermajority. The process, known among its opponents as “court packing”, is controversial.

But support for the idea gained momentum after US President Donald Trump appointed three justices to the bench in his first term. That conservative-led court has since handed him a string of legal victories.

In April 2021, four Democrats in the US Congress introduced a bill that would have created a Supreme Court with 13 justices.

They claimed it “would restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans”.

The US Constitution establishes the Supreme Court but does not limit – or specify – its size, leaving the matter entirely to the nation’s lawmakers.

In 1789, the Judiciary Act established six justices: a chief justice and five associates. The court changed in size several times over the next century. The current number of seats was set in 1869 and has been subject to debate since.

The most famous attempt to change the court’s composition was under former President Franklin D Roosevelt.

After winning the 1936 election, Roosevelt proposed expanding the court, which would have added one justice for each justice over the age of 70, with a maximum of six additional justices.

Since then, advocacy groups, including the Brennan Center for Justice, have proposed structural changes to the court, such as term limits and ethics codes, while some Democratic lawmakers have unsuccessfully called for a Roosevelt-like expansion.

The issue has reemerged in the midterm election season. In an interview with NBC News last month, Democratic Senator Jim Clyburn of South Carolina embraced the idea.

“I think that we are in a position now that calls for some significant actions taken by the Congress, and we ought to expand,” Clyburn said.

“Thirteen is a pretty good number. A baker’s dozen would be a good number to have on the court. I would hope that we would get people on the court who will follow the constitutional underpinnings of this great nation of ours.”

Former Vice President Kamala Harris, the 2024 Democratic presidential nominee, also suggested that Democrats should have a “real conversation” about “expanding the court to 13 justices”.

But Republicans, including Senator Chuck Grassley of Iowa, have remained staunchly opposed.

“We must safeguard the independence of the federal judiciary to protect our constitutional freedoms and way of life for generations to come,” Grassley said in a statement in June, citing Harris’s statements.