WASHINGTON (CN) — Texas Senator Ted Cruz made a play Wednesday, not for the first time, to amend the country’s founding document so that the possibility of a U.S. Supreme Court with more than nine justices remains confined to some Democratic imaginations.
Whereas federal law states that the Supreme Court must have at least six justices to maintain a quorum, the constitutional amendment reintroduced this morning would expressly limit its membership. Cruz, alongside a coalition of 10 of his Senate GOP colleagues, also brought forward a bill that would block Congress from considering any legislation that would modify the number of justices who can serve on the high court.
The Lone Star State’s junior senator introduced similar legislation in 2020.
Republicans frame the move as a necessary one to counter what they see as an effort by congressional Democrats to expand the Supreme Court and fill the new seats with faces more friendly to their politics. Justices, appointed by the president, serve for life.
“The Democrats’ answer to a Supreme Court that is dedicated to upholding the rule of law and the Constitution is to pack it with liberals who will rule the way they want,” Cruz said in a statement. “The Supreme Court should be independent, not inflated by every new administration.”
Missouri Senator Josh Hawley, a co-sponsor of the legislation, echoed those sentiments.
“For years the left has been desperate to pack the court to promote their radical agenda,” Hawley said. “We must ensure that we stay true to the court’s founding principles, maintain the precedent of nine justices, and keep the Democrats from their brazen attempts to rig our democracy.”
A spokesperson for Senator Dick Durbin, an Illinois Democrat and chair of the Senate Judiciary Committee — the panel tasked with debating constitutional issues — did not immediately return a request for comment.
New Jersey Senator Cory Booker, attending a bill unveiling on the Capitol steps Wednesday, declined to comment on Cruz’s proposal.
The proposed amendment faces an uphill battle if it has any chance of getting enshrined in the Constitution. If the measure is passed on a two-thirds vote by both houses of Congress — which appears unlikely given the slim Democratic majority in the Senate — it would also need approval by the states on a three-fourths majority.
The battle over the Supreme Court’s justice count is already well-worn territory in Congress. In this legislative session, Arizona Republican Andy Biggs introduced in January a similar constitutional amendment aimed at capping the number of justices at nine. Members of the House GOP have made similar proposals as far back as 2019.
Conversely, some congressional Democrats have undertaken efforts to expand the high court. Georgia Congressman Hank Johnson, alongside New York colleague Jerry Nadler, introduced in 2021 a bill that would have amended federal law to increase the number of Supreme Court justices to 12. The lawmakers pointed to what they called a conservative supermajority on the dais as evidence supporting the need for court expansion.
Neither of these methods are particularly effective, according to Gabe Roth, executive director of Supreme Court advocacy group Fix the Court.
“I don’t exactly see the point of these sorts of bills,” Roth said in an interview Wednesday.
Efforts like Cruz’s are backlash to a court-packing movement that isn’t likely to become law, Roth explained. “It would create this tit-for-tat where, within a few Congresses, you’d have a Supreme Court of 37 justices.”
Roth also suggested that Cruz himself was riding the shifting political winds with his proposed amendment, pointing to a 2015 op-ed from the senator in which he advocated for retention elections, a process by which states could vote to oust Supreme Court justices. “That would, potentially, change the size of the Supreme Court,” Roth argued.
Cruz made his 2015 comments in the wake of the Obergefell v. Hodges decision that legalized same-sex marriage in the U.S. Now that the Supreme Court’s decisions favor conservative political aims, Roth contended, the senator has changed his tune.
Roth, whose organization supports enacting term limits for Supreme Court justices, said he understood frustrations among Democrats about the high court’s recent record of decisions. As he sees it, however, adding justices to balance things out is not the right move. “A lot of what’s going on on the left is to take power away from the court,” he said, “not aggrandize the court by specifically appointing certain justices to overturn certain rules, laws and decisions.”
As an advocate for judicial term limits, Roth held that such a process would help to depoliticize the Supreme Court. “It’s politically neutral,” he said. “We don’t know who is going to be the president in two, four, six or eight years, but if a new justice is added to the court every two years, that keeps the churn going in a way that will balance out the court over time.”
“If you want to keep politics out of the judiciary, my view is that you should support reforms that benefit neither party,” Roth added, “but that benefit the transparency and accountability of critically important government institutions.”
Follow @BenjaminSWeiss
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