Sen. Ted Cruz Introduces Amendment to Block Packing of US Supreme Court

A woman works on her laptop outside of the U.S. Supreme Court in Washington on Feb. 22, 2023. Anna Moneymaker/Getty Images

Republican Sen. Ted Cruz of Texas on Wednesday reintroduced a constitutional amendment to ensure the number of justices serving on the U.S. Supreme Court remains at nine.

“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 an emailed statement.

“The Supreme Court should be independent, not inflated by every new administration. That’s why I’ve introduced a constitutional amendment to permanently keep the number of justices at nine.”

Cruz’s proposal was first introduced in 2021 in response to Democrats suggesting they would change the size of the highest court.

Sen. Ted Cruz (R-Texas) speaks at a press conference at the U.S. Capitol to discuss immigration at the southern border in Washington, D.C., on June 22, 2022. Anna Moneymaker/Getty Images

The amendment is co-sponsored by Republican Sens. Roger Marshall, Kan.; Bill Hagerty, Tenn.; Mike Lee, Utah; Tom Cotton, Ark.; Chuck Grassley, Iowa; Josh Hawley, Mo.; Thom Tillis, N.C.; John Kennedy, La.; Cindy Hyde-Smith, Miss., and Mike Braun, Ind.

“The Supreme Court of the United States shall be composed of nine justices,” the proposal reads. (pdf)

Between 1790 and 1869, the number of justices serving on the Supreme Court changed six times, ranging from five to ten, before settling on the present total of nine.

The president nominates Supreme Court justices subject to the approval of the Senate.

Three justices, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett, were confirmed during former President Donald Trump’s term bringing the high court to a conservative majority of 6-3.

Attempts to Expand Court

The justices’ confirmations prompted some Democrats to call for expanding the court.

In 2021, Sen. Ed Markey (D-Mass.) introduced a proposal to add four justices to the court for a total of 13.

“The momentum for this effort is going to grow. Especially if the court does drift dramatically in a direction which is overturning progressive precedent after progressive precedent, Markey said in a 2021 interview, Politico reported.

(L-R) Rep. Hank Johnson (D-Ga.), Sen. Ed Markey (D-Mass.), House Judiciary Committee Chairman Rep. Jerrold Nadler (D-N.Y.) and Rep. Mondaire Jones (D-N.Y.) hold a press conference in front of the U.S. Supreme Court on April 15, 2021. Drew Angerer/Getty Images

Markey’s measure failed, but the idea is still alive among some Democrat lawmakers who believe the Supreme Court ruled unjustly when it overturned the 1972 Roe v. Wade decision in June 2022.

“Right-wing extremists have hijacked the Supreme Court of the United States,” Sen. Elizabeth Warren, Mass., wrote on Twitter last year after Justice Samuel Alito’s draft opinion of the decision was leaked. “We must #ExpandTheCourt to rebalance it and defend our basic rights, including the constitutional right to an abortion.”

Republican lawmakers have called on Congress to stop Democrats’ attempts to sway the balance of the land’s highest court.

“For years the left has been desperate to pack the court to promote their radical agenda,” Hawley said in a statement. “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 attempt to rig our democracy.”

Since taking office, President Joe Biden has nominated one new member of the Supreme Court. Justice Ketanji Brown was confirmed by the Senate in April 2022 and took her seat two months later.

Last month, Sens. Jim Risch (R-Idaho) and Marco Rubio (R-Fla.), along with 10 cosponsors, introduced a similar constitutional amendment that would limit the Supreme Court to no more than nine justices.

If Congress passes the resolution, it will be sent to the states for ratification.