House Rejects GOP Bid to Lock Supreme Court at Nine Justices

The House on Wednesday rejected a Republican-sponsored constitutional amendment that would have permanently fixed the size of the Supreme Court at nine justices, the latest sign that a once-fringe debate over changing the court's makeup has become a live fault line between the parties heading into the November midterms.

The measure, H.J. Res. 1, failed on a vote of 212 to 206, falling well short of the two-thirds majority the Constitution requires for a proposed amendment to advance. It was brought up under a fast-track procedure known as suspension of the rules, which also requires supermajority support and is typically reserved for noncontroversial bills — a choice Republican leaders made knowing it would fail, in order to put Democrats on record.

The vote, by the numbers

Every Republican who cast a vote, 211 in all, backed the resolution, according to the official roll call recorded by the Clerk of the House. Democrats broke almost uniformly the other way: 205 voted no, and only Rep. Don Davis of North Carolina crossed over to vote yes. The chamber's lone independent also voted against the measure. Fifteen members did not vote. Because the resolution needed roughly 279 votes to clear the two-thirds threshold with 418 members voting, it fell 67 votes short.

The joint resolution, sponsored by Rep. Andy Biggs, R-Ariz., consists of a single operative sentence: "The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices." Had it passed both chambers by two-thirds majorities, it would then have needed ratification by 38 states — three-quarters of the 50 — to become the 28th Amendment. The House Judiciary Committee had advanced the resolution on a 15-8 vote in June before it reached the floor.

How the size of the court became a fight

Nine justices has been the court's fixed size since the Judiciary Act of 1869, but the number is not written into the Constitution, which leaves the court's composition to Congress. Lawmakers have changed the size of the court seven times since the first Judiciary Act of 1789, when it started with six seats; the total dropped as low as five and rose as high as ten before settling at nine after the Civil War.

Talk of changing that number again has moved from the party's activist wing toward its mainstream in recent years, driven by a string of high-profile rulings from the court's conservative majority, including the 2022 decision overturning Roe v. Wade, decisions narrowing the Voting Rights Act, and a 2024 ruling granting former presidents broad immunity from criminal prosecution for official acts. Rep. Jim Clyburn, D-S.C., a former House Democratic leader, has said publicly that he would support expanding the court to 13 seats — "a baker's dozen," as he put it — and 2024 Democratic presidential nominee Kamala Harris has said she is open to expansion as well. A companion resolution to lock the court at nine seats was introduced in the Senate earlier this year by Sens. Todd Young of Indiana and Ted Cruz of Texas, who argued in a joint announcement that fixing the number would insulate the judiciary from partisan manipulation regardless of which party controls Washington.

Reaction on both sides

Speaker Mike Johnson, R-La., told reporters ahead of the vote that "nine justices has worked well" for the country and warned that allowing future expansion would turn the court into what he called a "political palooza" that changes with each election. Biggs made a similar argument in a statement after the Judiciary Committee advanced his resolution, saying the amendment "fixes the number of justices at nine permanently, not because nine is a magic number, but because a fixed court cannot be expanded by whoever happens to win the next election."

Democratic leaders countered that the resolution was less about protecting the court than about denying Congress a tool it has used repeatedly across American history. House Democratic Whip Katherine Clark, D-Mass., urged colleagues to vote no in a written statement, arguing that lawmakers have "periodically exercised its constitutional authority to pass legislation changing the size, structure, and jurisdiction of the Court and federal judiciary to reflect political, geographic, and demographic changes in the country."

"H.J. Res. 1 is not a serious effort to improve our constitutional system or address the challenges everyday Americans are facing. It is yet another attempt by House Republicans to surrender Congress' constitutional powers and oversight duties over both the President and the Supreme Court," Clark's office wrote.

The vote arrived in the same week the House also approved a symbolic resolution condemning socialism, part of a slate of messaging votes Republican leaders scheduled before lawmakers leave Washington for an extended stretch ahead of the midterm campaign. Neither measure was expected to become law; both were designed to force on-the-record votes that party strategists can use in fall advertising.

What happens next

The failed vote effectively ends this attempt to lock in the court's size for the current Congress, since a two-thirds threshold leaves little room for a second try without a substantial shift in the chamber's makeup. The Senate companion resolution from Young and Cruz has not been scheduled for a floor vote and would face the same two-thirds barrier in a chamber where Republicans hold a narrower majority than in the House.

For Democrats, the episode is likely to keep the debate over the court's size alive rather than close it. Court-expansion proposals have drawn renewed attention within the party's platform discussions looking toward 2028, and Wednesday's vote gives progressive advocates a fresh data point: every viable path to enlarging the court remains open for now, and Republicans' attempt to foreclose it fell well short of the supermajority needed to change the Constitution. Any future push to add seats to the court would itself require ordinary legislation — not a constitutional amendment — and would need to clear the Senate's own procedural hurdles, meaning the size of the Supreme Court is likely to remain a matter Congress could revisit whenever one party controls enough of Washington to try.