Purpose and Summary
H.J. Res. 1, introduced by Rep. Andy Biggs (R-AZ), proposes
an amendment to the Constitution to fix the size of the Supreme
Court at nine justices. This amendment is designed to insulate
the Supreme Court from political pressure and maintain its
integrity, ensuring that it can continue to safeguard the
rights of all Americans.
Background and Need for the Legislation
The Committee on the Judiciary has advocated strongly
against the expansion of the Supreme Court for political
purposes, or ``court packing,'' and other efforts to change the
structure of the Supreme Court in a way that weakens its
integrity.\1\ In the 119th Congress, the Committee and the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet heard testimony from legal
experts and historians that outlined the threat to judicial
integrity posed by court-packing and related proposals.\2\
While the number of Supreme Court justices is not specified in
the Constitution, Congress has kept the number at nine since
1869.\3\ A recent flurry of partisan expansion proposals
threaten to undermine the Court,\4\ making it necessary to fix
the number of justices at nine via constitutional amendment.
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\1\See e.g. Nate Raymond, House Republicans advance constitutional
amendment to prevent U.S. Supreme Court expansion, Reuters (June 3,
2026); Hearing on Court Packing: A Threat to the Supreme Court's
Legitimacy of the H. Comm. on the Judiciary, 119th Cong. (May 21,
2026).
\2\Hearing on Court Packing: A Threat to the Supreme Court's
Legitimacy of the H. Comm. on the Judiciary, 119th Cong. (May 21, 2026)
(submitted written testimony of Gene Schaerr); Hearing on Court
Packing: A Threat to the Supreme Court's Legitimacy of the H. Comm. on
the Judiciary, 119th Cong. (May 21, 2026) (submitted written testimony
of Louis Capozzi); Hearing on Court Packing: A Threat to the Supreme
Court's Legitimacy of the H. Comm. on the Judiciary, 119th Cong. (May
21, 2026) (submitted written testimony of William Ross).
\3\Joanna R. Lampe, Cong. Research Serv. No. LSB10562, ``Court
Packing'': Legislative Control over the Size of the Supreme Court 6
(2023).
\4\See, e.g., H.R. 2584, 117th Cong. (2021); H.R. 3422, 118th Cong.
(2023); H.R. 3544, 119th Cong. (2025); H.R. 8647, 119th Cong. (2026).
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The Supreme Court is the Last Line of Defense for Protecting the Rights
and Liberties of All Americans
Article III of the U.S. Constitution establishes the
Supreme Court of the United States as the highest court in the
nation, with final say over disputes involving the Constitution
and federal law.\5\ The Founders envisioned that the Supreme
Court would have the power of ``judicial review,'' meaning the
power to invalidate laws and government actions that violate
the U.S. Constitution.\6\ As Alexander Hamilton wrote in the
Federalist No. 78, ``limitations [on Federal power] can be
preserved in practice in no other way than through the medium
of courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the Constitution void.''\7\ A
court with the power of judicial review could uphold the
Constitution as our ``highest law,'' protecting the separation
of powers and our core constitutional liberties from the whims
of bare and fleeting majorities.\8\ By design, the Founders
ensured that only large, durable majorities could reshape the
nature of the nation's social contract.\9\ While the Supreme
Court's success in protecting individual liberty has been
uneven throughout history,\10\ key decisions from the Court
safeguard free speech,\11\ religious freedom,\12\ the right to
bear arms,\13\ equal treatment under law,\14\ and other core
American principles.
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\5\U.S. Const. art. III.
\6\See Keith Whittington, Repugnant Laws: Judicial Review of Acts
of Congress from the Founding to the Present at 70-83 (2019)
(explaining that by the time of the Constitutional Convention, judicial
review was a ``well-settled principle of constitutional law'' which was
``widely, if not universally, assumed.'').
\7\The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton
Rossiter ed., 1961).
\8\See Id.
\9\U.S. Const. art. V (laying out the process for constitutional
amendment, which requires a supermajority of Congress and the states).
\10\See Randy Barnett, Restoring the Lost Constitution (2003).
\11\See Brandenburg v. Ohio, 395 U.S. 444 (1969).
\12\See Kennedy v. Bremerton School Dist., 597 U.S. 507 (2022).
\13\See District of Columbia v. Heller, 554 U.S. 570 (2008);
McDonald v. Chicago, 561 U.S. 742 (2020); New York State Rifle & Pistol
Ass'n v. Bruen, 597 U.S. 1 (2022); Wolford v. Lopez, 609 U.S. __
(2026).
\14\See Brown v. Board of Education, 347 U.S. 483 (1954); Students
for Fair Admissions v. Harvard, 600 U.S. 181 (2023).
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In practice, this arrangement makes the Court a ``counter-
majoritarian'' institution,\15\ which is what the Founders
envisioned.\16\ The Court's role is to keep the country
tethered to our founding principles, even when doing so is
politically unpalatable or unpopular.\17\ The Court, in other
words, exists to defend the ideals of the Declaration of
Independence and principles of the Constitution against those
who claim they have found something ``more modern.''\18\
Proposals to expand the size of the Supreme Court and ``pack''
the Court with justices that would be expected to reliably vote
for certain policy outcomes would undermine the Court's
fundamental duty.\19\ Moreover, court packing would likely set
off an arms race, with each party expanding or contracting the
Supreme Court to ensure that the Court caters to its policy
preferences.\20\ The Court would become an extension of the
political branches rather than an independent tribunal
defending the Constitution.\21\
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\15\Alexander Bickel, The Least Dangerous Branch (1962).
\16\See Keith Whittington, Repugnant Laws: Judicial Review of Acts
of Congress from the Founding to the Present at 70-83 (2019).
\17\Alexander Bickel, The Least Dangerous Branch at 64-68 (1962).
\18\See Pres. Calvin Coolidge, Address on the 150th Anniversary of
the Declaration of Independence (July 5, 1926).
\19\Judiciary Act of 2023, H.R. 3422, 118th Cong. (2023).
\20\See Sen. Orrin Hatch, Avoiding Judicial Armageddon, Nat'l Rev.
(Oct. 28, 2020).
\21\Id.
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A constitutional amendment to fix the size of the Supreme
Court at nine justices would avert this crisis. The amendment
would protect the Supreme Court from political influence and
ensure that the Court remains able to independently uphold the
Constitution, protecting the separation of powers and
Americans' individual rights.\22\
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\22\See Sen. Orrin Hatch, Avoiding Judicial Armageddon, Nat'l Rev.
(Oct. 28, 2020).
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Prominent jurists and politicians from across the
ideological spectrum have agreed that court packing is a
dangerous idea. In 2019, Justice Ruth Bader Ginsburg stated,
``I think it was a bad idea when President Franklin Roosevelt
tried to pack the court,'' and that ``[i]f anything would make
the court look partisan, it would be that.''\23\ In April 2021,
Justice Stephen Breyer remarked during a Harvard Law School
speech that packing the Court would be a ``structural
alteration'' that would result in ``eroding'' trust in the
judiciary.\24\ In September 2021, Justice Breyer again
criticized ``packing'' the court.\25\ In an interview with NPR,
Justice Breyer noted, ``What goes around comes around. And if
the Democrats can do it, the Republicans can do it.''\26\ Chief
Justice John Roberts has not directly condemned court packing,
but his 2021 annual year-end report discusses ``strident calls
for reform,'' which during that year were primarily proposals
to pack the court.\27\ Chief Justice Roberts implicitly
cautioned against court-packing in reference to these calls for
reform, emphasizing the importance of ``decisional
independence'' and ``impartial decision-making, free from
political or other extraneous influence.''\28\
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\23\Nina Totenberg, Justice Ginsburg: `I am Very Much Alive', NPR
(Jul 24, 2019).
\24\Devin Dwyer, Justice Stephen Breyer warns against `packing'
Supreme Court, ABC News (Apr. 7, 2021).
\25\Duncan Schroeder, Justice Breyer thinks court packing is a bad
idea. We agree., Pacific Legal Found. (Sept. 30, 2021).
\26\Breyer Warns Against Remaking the Court: `What Goes Around
Comes Around', NPR (Sept. 10, 2021).
\27\Matt Ford, Can John Roberts Save the Supreme Court From
Itself?, The New Republic (Jan. 5, 2022).
\28\Id.
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There has been longstanding bipartisan opposition to court
packing in Congress, too. In 1983, when speaking about former
President Franklin Roosevelt's proposal to pack the Supreme
Court, then-Senator Joseph Biden called it a ``bonehead idea'';
a ``terrible, terrible mistake to make''; and that ``it put in
question, if for an entire decade, the independence of the
most-significant body . . . in this country, the Supreme Court
of the United States of America.''\29\ Years later, as
President, President Biden's hand-picked Presidential
Commission on the Supreme Court of the United States expressed
hesitation about packing the court, finding that ``Court
expansion is likely to undermine, rather than enhance, the
Supreme Court's legitimacy.''\30\ Senator Ted Cruz has been a
consistent voice in opposition to court-packing, introducing
legislation in the 116th, 118th, and 119th Congresses to combat
court-packing efforts.\31\ He has highlighted the importance of
ensuring that ``the Supreme Court remains a non-partisan
guardian of the rule of law,'' reiterating concerns about
impartiality expressed across the board by those who oppose
court-packing.\32\
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\29\Thomas Barrabi, FLASHBACK: That time Biden called court-packing
a `bonehead idea,' Fox News (Apr. 15, 2021).
\30\Presidential Commission on Scotus, October 15, 2021 Public
Meeting, https://www.whitehouse.gov/pcscotus/public-meetings/october-
15-2021-pcscotus-meeting/; Presidential Commission on SCOTUS, October
15, 2021 Public Meeting, Discussion Materials, Membership and Size of
Court at 11, https://www.whitehouse.gov/wp-content/uploads/2021/10/
MEMBERSHIP-AND-SIZE-OF-THE-COURT_.pdf.
\31\S. 4085, 116th Cong. (2020); S.J. Res. 21, 118th Cong. (2023);
S.J. Res. 16, 119th Cong. (2025).
\32\Press Release, Sen. Cruz Introduces Constitutional Amendment to
Prevent Democrats from Court Packing the Supreme Court (June 2, 2025).
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Historical Attempts to Pack the Supreme Court Have Failed and Been
Resoundingly Condemned as an Inappropriate Attack on the Institution
While Article III establishes ``one supreme Court,'' it
neither fixes the size of the Court nor specifically empowers
Congress to do so.\33\ Through the Constitution's Necessary and
Proper Clause, Congress has historically set the number of
justices on the Supreme Court.\34\ While this number fluctuated
throughout the 19th Century with the number of federal circuit
courts, the size of the Supreme Court has remained at nine
justices since 1869.\35\
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\33\U.S. Const. art. III, Sec. 1.
\34\Joanna R. Lampe, Cong. Research Serv. No. LSB10562, ``Court
Packing'': Legislative Control over the Size of the Supreme Court 1-2
(2020).
\35\Id. at 2-3. During the period when the Court's size fluctuated
with the number of circuits, justices were responsible for ``riding
circuit'' and hearing cases at lower levels of the federal courts. Once
this practice ended, there was no longer a reason to expand or shrink
the court as new lower courts were created.
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The most prominent modern effort to change the size of the
Supreme Court was President Franklin D. Roosevelt's 1937
attempt to pack the Court. On February 5, 1937, in the wake of
his landslide victory in the 1936 presidential election,
President Roosevelt sent Congress a sweeping judicial reform
proposal that included an expansion of the Supreme Court.\36\
President Roosevelt sought to add an additional justice to the
Court for every sitting justice who reached the age of 70 years
and six months, which would have expanded the Court to fifteen
justices.\37\ This scheme sought to cement a dependable left-
wing majority on the Court after it had repeatedly struck down
his New Deal legislation as unconstitutional.\38\ In his thinly
veiled letter to Congress, President Roosevelt stated that
``lowered mental or physical vigor leads men to avoid an
examination of complicated and changed conditions. Little by
little, new facts become blurred through old glasses[.]''\39\
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\36\Barry Cushman, Court-Packing in Context, The Presidential
Comm'n on the Sup. Ct. (2021).
\37\Id. Roosevelt's plan capped the number of new justices at six,
for a total of fifteen.
\38\Id.
\39\Franklin D. Roosevelt, Message to Congress on the
Reorganization of the Judicial Branch of the Government, The American
Presidency Project (Feb. 5, 1937).
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This court-packing attempt faced opposition from both
Congress and the Supreme Court itself. Between March and August
1937, Members of Congress introduced at least ten
constitutional amendments fixing the number of justices at
nine.\40\ In hearings before the Senate Judiciary Committee,
seventy witnesses testified in opposition to the President's
court-packing plan.\41\ Most witnesses denounced it as an
attack on judicial independence and separation of powers.\42\
Many witnesses shared President Roosevelt's concerns with the
Court's recent decisions, but believed that court packing was
the wrong way to address these concerns, stating that it
violated the spirit of the Constitution, if not the letter.\43\
Even then-Chief Justice Charles Evans Hughes entered the fray:
during the Senate Judiciary hearings, he wrote a letter
refuting the President's claims about the Court's inefficiency
and argued that an expansion of the Court would hamper its
operation.\44\
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\40\Id; see H.J. Res. 265 (1937); H.J. Res. 277 (1937); H.J. Res.
293 (1937); H.J. Res. 303 (1937); H.J. Res. 307 (1937); H.J. Res. 312
(1937); S.J. Res. 86 (1937); H.J. Res. 360 (1937); H.J. Res. 383
(1937); S.J. Res. 317 (1937).
\41\Id.
\42\Id.
\43\Id.
\44\Richard D. Friedman, Chief Justice Hughes' Letter on Court-
packing, J. Sup. Ct. Hist. 22, no. 1 (1997).
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In June 1937, the Democrat-controlled Senate Judiciary
Committee recommended the President's bill be voted down,
describing it as ``an invasion of judicial power such as has
never before been attempted in this country.''\45\ The
Committee called President Roosevelt's court-packing proposal
``a measure which should be so emphatically rejected that its
parallel will never again be presented to the free
representatives of the free people of America.''\46\ A month
later, the Senate voted 70-20 to send the bill back to
committee with instructions to eliminate all provisions for
increasing the number of justices.\47\ At the apex of President
Roosevelt's popularity, his own party abandoned his misguided
attempt to snatch away the judicial power through court
packing. The principles that animated this opposition--the
principles that the Senate Judiciary Committee described in
1937--remain true today.
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\45\Olivia B. Waxman, Some Democrats Want to Make the Supreme Court
Bigger. Here's the History of Court Packing, Time (Oct. 16, 2019).
\46\S. Rep. No. 75-711, at 11, 23 (1937).
\47\Id; Richard D. Friedman, Chief Justice Hughes' Letter on Court-
Packing, 22 J. Sup. Ct. Hist. 76 (1997).
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Court-Packing Efforts Have Intensified During Recent Congresses
During the last three Congresses, there have been serious
efforts to expand the Supreme Court. In the 117th Congress,
Representative Hank Johnson (D-GA) introduced the Judiciary Act
of 2021 to add four associate justices to the Court, bringing
the total number of justices to thirteen.\48\ Representative
Johnson reintroduced this legislation in 2023.\49\ In the 119th
Congress, Representative Al Green (D-TX) introduced a similar
bill to expand the Supreme Court to thirteen justices.\50\
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\48\H.R. 2584, 117th Cong. (2021).
\49\H.R. 3422, 118th Cong. (2023).
\50\H.R. 8647, 119th Cong. (2026).
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House Joint Resolution 1
H.J. Res. 1 proposes an amendment to the Constitution to
set the number of justices at nine.\51\ It would fix the
current composition of the Court, with one chief justice and
eight associate justices.\52\ By fixing the number of justices
and composition of the Court in the Constitution, this
amendment would prevent the fleeting, partisan whims of
Congress from undermining the legitimacy of the Court.
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\51\H.R. Joint Res. 1, 119th Cong. (2025).
\52\Id.
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Dissenting Views
The question H.J. Res. 1 presents is not really about
whether nine should suddenly become a magic number of justices
for the Supreme Court. It's about whether this Republican-
controlled Congress--which has already surrendered
congressional war powers, congressional taxing and tariff
powers, and congressional spending powers to a president
desiring to be a king--should now permanently relinquish
another constitutional power that the Framers gave to us in
Article I.
The Framers understood that the more a president seeks to
expand the powers of the executive branch, the more important
it would be for the other branches of government, Congress and
the Judiciary, to exercise our own powers to serve as a
structural check on an imperious and rapacious executive
branch. That's why we have the power of impeachment, the power
of oversight, the power of the purse. Alas, over the last year
and a half, we've seen this Republican-controlled Congress act
in an utterly obsequious and invertebrate fashion before a
President who thinks he can go to war without Congress, impose
tariffs without Congress, create billion-dollar slush funds
without Congress, give himself and his family permanent
immunity for crimes and civil wrongs committed without Congress
and reduce the Supreme Court and the federal judiciary to the
pure instrument of his will.
Placing loyalty to party over loyalty to the Constitution,
MAGA House Republicans have repeatedly declined to act in any
way to reject the executive branch's outrageous usurpations. In
fairness to the Senate Republicans, they have properly reacted
with outrage and scorn for the President's attempts to deal
himself $1.776 billion to bankroll his private militia and
ship-of-fools political operation. But this joint resolution
from House Republicans takes us further down the road of
institutional capitulation and surrender.
This is not constitutional conservatism but rather one more
legislative abdication that strikes at the very architecture of
our republic. The Founding Fathers designed Congress to be the
``predominant'' branch, the one representing the people
directly and the one most capable of standing as a bulwark
against a president grasping for Kingly powers. As the people's
Representatives, we are meant to protect the Constitution, not
surrender its authority whenever a president likes his
particular stacking and packing of power on the Supreme Court
and wants to freeze it into place. But that's what the
Administration now demands, and our Republican colleagues fall
into line like good little foot soldiers, proactively and
permanently ceding another one of Congress's powers to
presidential will, for no good reason.
Over the course of our nation's history, Congress has
repeatedly exercised its authority to change the size,
structure, jurisdiction and other aspects of the Court and
federal judiciary, and for a variety of reasons. The Judiciary
Act of 1789 established the first Supreme Court with six
justices--I guess that would have been unlawful and not to the
liking of our friends across the aisle. Then in 1801, President
John Adams and Congress shrank the size of the Court from six
to five, to limit the incoming President Thomas Jefferson's
ability to make appointments--I guess that would have been
unconstitutional in the view of our colleagues across the
aisle, too. When President Jefferson and his Republican
Majority came into power, Congress restored the sixth seat.
In 1807, Congress expanded the size of the court to seven
seats when it created the 7th Circuit Court of Appeals, and
that became the pattern: there should be one justice for each
circuit. Again, in 1837, Congress expanded the number of
federal circuits to nine and added the corresponding additional
two seats to the Supreme Court, bringing the total number to
nine. In 1863, Congress briefly added a 10th Circuit during the
Civil War, and of course, added a 10th justice to the Supreme
Court, giving President Abraham Lincoln another justice to
appoint.
In 1866, Congress abolished the 10th Circuit and then
reduced the size of the Supreme Court to seven justices.
Congress did so to deny President Andrew Johnson the ability to
nominate justices who might undermine Reconstruction. Again, in
1869, President Ulysses Grant increased the Court to nine
justices with another Judiciary Act, which set the number at
nine, matching the number of justices for the number of federal
circuits.
So why would we propose a constitutional amendment now,
after this history, to tie our own hands--and the hands of
every future Congress--for all time?
This Resolution is obviously meant to cement into place a
profoundly partisan and lopsided Supreme Court that was
successfully stacked and packed by former Senate Majority
Leader Mitch McConnell after the deaths of Justice Scalia and
Justice Ginsburg. In the former case, when President Barack
Obama nominated Merrick Garland to fill the seat, Sen.
McConnell did not even allow hearings, much less a vote--a full
11 months before the next election because he said the people
should decide. Of course, the people had decided, by electing
President Obama to serve as president for a four-year term. In
the latter case, Sen. McConnell rushed Amy Coney Barrett's
nomination to a vote less than two weeks before the
presidential election.
This measure before us today is not actually a serious
effort to improve our constitutional system. It is an attempt
to pacify the President, yet again, by freezing the
illegitimate Court-packing handiwork of the MAGA Senators into
place for all time. Our MAGA Republican colleagues are trying
to give away another tool that our Constitution deliberately
gave to Congress to check the other two branches simply because
Donald Trump is now demanding it.
We shouldn't be surprised. It is entirely in keeping with
the pattern we have seen since January 20, 2025, where, under
MAGA Republican leadership, congressional power is negotiable
while the unprecedented expansion of executive power cannot be
stopped and is instead celebrated.
Over the last year and a half, President Trump has sued his
own government for $10 billion, attempted to extort a nearly
$1.8 billion ``settlement'' slush fund--paid for by the
American taxpayers--to reward convicted cop beaters, criminals
and other MAGA foot soldiers. He's used the Department of
Justice to pursue personal grievances, demanding it investigate
and prosecute people the President doesn't like. He started an
unconstitutional and ruinous war in Iran. He's diverted funding
appropriated by Congress to his own personal vanity projects,
dismantled federal agencies, accepted unconstitutional lavish
gifts from foreign governments, pardoned convicted drug
traffickers, and pocketed millions of dollars from ``deals'''
he and his family members have made. And the Republican-
controlled Congress has done nothing to stop him.
Meanwhile, gas prices have soared, prices across the
economy increased, and inflation is on the rise. Americans are
worried about the cost of groceries, the cost of housing, and
the cost of healthcare. Families across the country are sitting
around the kitchen table trying to figure out how to stretch
their paycheck just a little further, while the President says
he doesn't think about the American people's finances ``at
all.'' Instead, he demands that American families foot the bill
for his unconstitutional tariffs, his war of choice with Iran,
his billion-dollar White House ballroom, and a triumphal arch
in his name, while congressional Republicans refuse to stop
him, and refuse to stand up for the American people.
This proposed ``constitutional amendment'' is not headed
for ratification; everybody knows that. So, I turn back to the
question of whether Congress should permanently surrender
another one of its constitutional powers. The Framers answered
that question well for us, more than two centuries ago, and I
stand with them. Congress was designed to check executive
power, not to succumb and surrender to it, so I oppose this
resolution.
Jamie Raskin,
Ranking Member.
[all]