9 justices on the Supreme Court or 13? Numbers battle revived in Congress

WASHINGTON — As public opinion of the U.S. Supreme Court flags amid decisions that have roiled the nation, Democrats renewed calls ahead of the midterms to expand the high court, while House Republicans are considering a constitutional amendment this week that proposes to cap the number at nine.

Just Monday, the court gave the green light to President Donald Trump’s ballroom expansion and is expected to issue a major ruling soon on Trump’s vote-by-mail order that could throw the midterm elections into chaos. 

Over the weekend, Rep. Jim Clyburn, D-S.C., said, “I think that we are in a position now that calls from some significant actions taken by the Congress.

“And we ought to expand — and 13 is a pretty good number. A baker’s dozen would be a good number to have on the court,” the 17-term House Democrat said on NBC News’ “Meet the Press with Kristen Welker.”

Clyburn said conservatives on the court, specifically naming Justice Clarence Thomas, have decided to “take the country back” in time.

In late April, the Supreme Court’s conservative super majority struck down a protection in the Voting Rights Act that assured the vote of majority Black congressional districts could not be diluted.

In June, the court upheld the Constitution’s 14th Amendment guaranteeing birthright citizenship, but the decision was not unanimous. Four justices dissented, arguing that there are some exceptions for certain babies born to immigrants on U.S. soil, depending on their parents’ immigration status.

Clyburn is not the only Democrat to call for court expansion. Former Vice President Kamala Harris, a likely 2028 presidential hopeful, also advocated for a 13-justice high court during July 31 comments at the National Urban League meeting in Nashville, Tennessee.

Other high-profile Democrats have said in recent weeks and months they want to see change at the Supreme Court, including House Minority Leader Hakeem Jeffries, D-N.Y., Sen. Raphael Warnock, D-Ga., Sen. Adam Schiff, D-Calif., and Pennsylvania Gov. Josh Shapiro.

As for public opinion, Pew Research found that just over half of Americans have an unfavorable view of the Supreme Court, according to survey results published July 30, a near historic low.

A Gallup poll published July 28 found confidence in the Supreme Court at a record low of 33%.

Constitutional amendment

While many Democrats’ answer to the dissatisfaction is to add more justices, the House is poised to vote as soon as this week on a Republican resolution to propose a constitutional amendment that would codify the number of justices at nine.

House Republican leadership is expected to bring the resolution to the floor under a suspension of rules, meaning that a two-thirds majority would be required to pass it.

The resolution would also have to pass the Senate to begin the seven-year clock for three-fifths of states, or 38, to ratify it.

Johnson fears 'political palooza'

House Speaker Mike Johnson told reporters on Capitol Hill Tuesday that he expects the resolution to hit the floor Wednesday.

Johnson accused the Democratic Socialists of America, whom he referred to as the “communist socialists in the Democrat party who are taking the party over,” of wanting “to pack the U.S. Supreme Court.”

“We’re gonna make sure that doesn’t happen,” the Louisiana Republican said.

“There’s a couple of Democrats here in the House who have suggested that they’re not on board with the Democratic Socialists of America, just a few. They’re gonna get a chance to show us tomorrow. … Nine justices has worked well.”

Johnson added expanding the court risks turning into “a political palooza.”

His office did not respond to a States Newsroom request for comment on whether he believes the resolution would succeed or if leadership has put the bill on the floor calendar to send a message ahead of the November midterm elections in which control of the House is at stake.

Rep. Andy Biggs, R-Ariz., introduced the resolution in January 2025. The resolution was referred to the House calendar on July 6 of this year. Biggs won the GOP primary for Arizona governor in July.

Biggs argued in early June that his resolution would protect the court from people “threatening to pack this iconic American institution to ensure favorable outcomes for their causes.”

“This action will protect the Court’s legitimacy, preserve the checks and balances that safeguard our cherished freedoms, and ensure every American's rights remain secure – no matter who holds political power,” he said in a statement after the House Committee on the Judiciary advanced the legislation. 

Rep. Derrick Schmidt, R-Kansas, signed on as a cosponsor in early June, and Rep. Rick Allen, R-Ga., on July 16. Both men are in solidly Republican districts, according to the Cook Political Report with Amy Walter.

‘Magical thinking’

Not all think that expanding the Supreme Court or restricting its size to nine justices will fix what many see as serious flaws.

Gabe Roth, executive director of the nonprofit Fix the Court, said both ideas are “pretty cynical positions.”

“I think it just is part of this magical thinking that all of a sudden we're going to have 13 justices and everything is going to be okay in the federal judiciary. That voting rights will come back, abortion rights will come back, and that's not how cases reach the court,” said Roth, whose organization advocates for “non-ideological fixes.”

On the “keep nine” side, Roth said there’s a belief that the court now has a “perfect construct.”

“It’s not,” he said, adding “I don't see why keep nine is a good idea other than to try to rile up the base.”

Instead Roth wants to see term limits gradually phased in over time.

“Every democracy that's younger than ours has term limits or age limits for their apex court justices. Forty-nine out of 50 states have term limits, age limits, or retention elections for their apex courts,” he told States Newsroom in an interview Tuesday.

The Supreme Court lacks term limits “because King George was firing colonial judges, and so some monarch’s mental decrepitude shouldn't be a reason for maintaining something 250 years later,” Roth said, referring to Great Britain’s King George III at-will firing of judges in the colonies.

Founders of the United States wrote into the Constitution several guardrails against influencing the court, including giving judges lifetime appointments, according to the American Bar Association.

Roth supports legislation introduced last year by Rep. Ro Khanna, D-Calif., that would limit a justice’s Supreme Court service to 18 years, and would give each president a chance to nominate one justice during their first and third years in office.

That means the number of justices could fluctuate at times, depending on retirements or deaths.

“It's basically like you add a new justice every two years, and you know, if there are 10 or 11 justices for 10 or 15 years, so be it,” he said.

Democrats “came to the number four because that would give Democrats a 7-6 majority. It's not like they're pulling four out of thin air,” he said, referring to advocates who want 13 justices.

The system would be “fair” and “regularized,” Roth added.

“​​So we don't have a system where Trump gets three (nominations) in one term, and then Jimmy Carter got zero in his one term.”

Eight cosponsors, all Democrats, joined Khanna’s legislation. They include Reps. Don Beyer, D-Va., Rashida Tlaib, D-Mich, Sean Casten, D-Ill., Ilhan Omar, D-Minn., Daniel Goldman, D-N.Y., Juan Vargas, D-Calif., Summer Lee, D-Pa., and Yassamin Ansari, D-Ariz.

Both Rep. Hank Johnson, D-Ga., and Sen. Sheldon Whitehouse, D-R.I., have sponsored other legislation to create term limits for Supreme Court justices.

Johnson’s bill, first introduced in 2023, has 86 Democratic cosponsors. 

Sens. Cory Booker, D-N.J., Richard Blumenthal, D-Conn., and Alex Padilla, D-Calif., joined Whitehouse to reintroduce their term limits bill in July. 

Jennifer Shutt contributed to this report.