Should the Supreme Court have 9 members — or be expanded to 13?
Last week, a Republican-led effort to fix the number of seats on the Supreme Court to nine — the current number — came up for a vote in the House of Representatives.
Every so often, debate about the size of the U.S. Supreme Court bench reaches beyond mere chatter and faces a reality check — as it appears to be doing now.
Last week, a Republican-led effort spearheaded by Arizona Rep. Andy Biggs to fix the number of seats on the Supreme Court to nine — the current number — came up for a vote in the House of Representatives. The joint resolution to pass the constitutional amendment failed by a vote of 212 to 206, falling short of the two-thirds supermajority required in the House.
The vote marked the first time the full House has weighed in on a proposed constitutional amendment, which requires a two-thirds majority in both congressional chambers and ratification by three-fourths of states, in order to set the Supreme Court’s size at nine justices.
The debate over the size of the court marks an intensification of a long-running partisan fight to control the future of the judicial body that critics say is overreaching and has lost its independence.
Counterproposals by Democrats have sought to expand the court to as many as 13 members with life tenure, a number that would mirror the 13 federal courts of appeals that review decisions from regionally spread lower courts.
The stakes are high because changing the number of seats could alter the ideological balance of the court for decades. Keeping the bench at nine would preserve the current six-three conservative majority, while expanding it to 13 would give any future president the ability to potentially create a new favorable majority.
“The size of the court is in the hands of the Congress, which means that it is possible to be changed,” said Martha Davis, distinguished professor of law at Northeastern University.
Davis said that there is “no magic number” for how many justices should sit on the Supreme Court. The number also varies significantly across the globe. Canada’s highest court similarly seats nine judges, but there are 15 in Israel and Japan and 16 in Germany’s five federal high courts. India, meanwhile, seats 34 supreme court judges, and China has about 400.
In many instances, “the odd number is there to break a tie, but there’s nothing especially magic about nine,” Davis said. “And having the flexibility to change the structure, provided there is sufficient public support, would seem to make more sense than having it set in stone in the Constitution. That’s what the framers of the Constitution thought as well.”
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The Supreme Court notably — and briefly — had 10 justices during the Civil War, when Congress created a 10th federal circuit and added a corresponding seat to the court. That lasted about three years before Congress in 1866 reversed course and trimmed the court to seven justices — only to return to nine three years later.
It wasn’t until the Franklin D. Roosevelt administration in the 1930s that the question of the court’s size was yet again thrust into the limelight, when Roosevelt proposed adding as many as six justices to in an effort to overcome opposition to his New Deal agenda, a sweeping set of policies aimed at expanding the federal government through public works programs and economic reforms.
Fast-forward to 2020. After Justice Ruth Bader Ginsburg’s death, and President Donald Trump’s nomination of Amy Coney Barrett to replace her, the issue came roaring back. Four years earlier, Senate Majority Leader Mitch McConnell had blocked President Barack Obama’s Supreme Court nominee, Merrick Garland, arguing that the vacancy should be filled by whoever won the 2016 presidential election.
That resulted in the Senate’s confirmation of Trump-appointed Neil Gorsuch in 2017. His appointment meant that there was a 5-4 conservative majority, which was further consolidated when Barrett took her seat. The shift saw many Democrats begin to seriously consider expanding the court. Then Sen. Kamala Harris noted in 2019 that the situation on the court was nearing “a crisis of confidence” in the legal institution because of growing concerns that it was becoming politicized.
“The case for expanding the court primarily rests on the stolen seats argument from 2016 and 2020,” said Dan Urman, director of the law and public policy minor at Northeastern University, who teaches courses on the Supreme Court. He was referring to the seats vacated by Ginsburg and conservative stalwart Justice Antonin Scalia, who died in 2016.
It also turns on complaints about the divide between the court’s ideology and public opinion, Urman said. Public opinion polling has shown time and time again that the court is out of step with the public on a host of issues including abortion, executive power and voting rights, he noted.
Public opinion on expanding the court remains somewhat mixed. A 2023 Pew Research Center survey found that 46% of Americans favored increasing the number of justices, with 51% opposed. The issue was more prominently divided along partisan lines: 66% of Democrats favored expansion, compared with 27% of Republicans.
Proponents of expansion argue that it could return the court “to where it should have been” prior to the 2016 vacancy following Scalia’s death, Urman said. That’s especially true, he said, if the change is paired with “18-year, nonrenewable” term limits designed to make the institution more responsive to public opinion. A larger court might also allow justices to divide up cases among smaller panels and develop areas of specialization, experts say.
Opponents, on the other hand, warn that expanding the court could trigger an “arms race,” with each party adding seats when in power and undermining the institution’s stability, Urman said. And while the court’s size has changed throughout history, it has remained at nine justices for more than 150 years, he said.
