Mike Johnson Just Made the Case for Expanding the Supreme Court

Jurisprudence Photo illustration by Slate. Photos by Chip Somodevilla/Getty Images and Anna Moneymaker/Getty Images. Sign up for Executive Dysfunction, a weekly newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. Speaker of the House Mike Johnson led an effort Wednesday to amend the Constitution and cap the number of Supreme Court justices at nine. Since the size of the court is currently set by federal law, not by the Constitution, Johnson said the amendment was necessary to stop Democrats from adding justices to the court. Over the course of 24 hours, Johnson announced his plan to introduce the amendment and had it brought to the House floor, only for it to immediately fail along party lines. Despite this defeat, the debate over the court’s structure is just getting started. And Johnson’s “Stop the Count” strategy proves just how much reform is needed. It doesn’t take a brain surgeon (or even a lawyer) to understand why the leader of the House GOP would like to keep in place a Supreme Court with six Republican appointees. But these kinds of legislative efforts are extremely rare coming from any speaker. Although it was Arizona Rep. Andy Biggs who formally introduced the resolution, Wednesday marked the first time in 30 years that a House speaker has led the charge on proposing a constitutional amendment. What’s more interesting, then, is not the proposal itself, which consisted of only a sentence, but the reason Johnson felt the need to introduce the measure in the first place. His main rationale is that the Constitution allows Congress to set the size of the court through legislation. Early on in American history, there were often only six justices, a number that Congress expanded periodically. The court’s size rose to 10 by around the Civil War and the creation of the 10th U.S. Circuit Court of Appeals, which covers the Mountain West states. The Judiciary Act of 1869 set the current size at nine. In short, the only thing stopping court expansion is a Democratic congressional majority willing to pass a single court-reform law and a Democratic president willing to sign it. And as New York Times columnist Jamelle Bouie put it recently, “Democrats are getting serious about court reform.” Former Vice President and Democratic nominee Kamala Harris has officially advocated for expanding the court from nine to 13 justices. A lawyer herself, Harris notes that because the country already has 13 intermediate courts of appeal, a 13-member Supreme Court would allow each justice to review motions from a lower court one-to-one. Former Secretary of Transportation and 2020 Democratic presidential candidate Pete Buttigieg has made the same 13-member argument in his long-running calls to expand the court, while also developing new rules to make the nomination process less partisan. And in an interview this week on Meet the Press, influential South Carolina Rep. Jim Clyburn noted support for court expansion. So a position that was once shared by only a handful of congressional politicians is now the dominant Democratic view. Helping the party’s cause is the Constitution, which already gives Congress immense control over the size and structure of the court. Article 3 declares that there must be a Supreme Court, but that it has authority to decide only a narrow category of cases, such as lawsuits between different states. All other types of cases are in the court’s purview merely because Congress decided to grant jurisdiction over that subject by passing a law. The people’s representatives also have the authority to make as many lower federal courts as they choose; Congress has steadily expanded that number as the country has increased in population, to the point that we now have 94 such courts. Finally, the Senate too plays a major role in determining which nominees get confirmed and removed. In some ways, because of the power of Congress over the courts, there are many reasonable and accessible avenues toward improving our judiciary. But Republican legislators would rather sabotage their own chamber’s constitutional authority than allow Democrats the chance to reform the court. In opposition to Johnson’s proposal, House Minority Whip Katherine Clark noted that the amendment would strip Congress of “yet another constitutional authority that is meant to be controlled by the American people’s representatives.” Think for a second about the moral calculus the GOP is doing. We’re talking about a system of congressional authority over the court that has lasted for 250 years. And Republicans are so scared of the electorate voting for judicial reform that they would eliminate a key piece of that century-old authority in the two months before they’re likely voted out of office. Speaking of failing to convince voters, Johnson’s call for constitutional self-castration is shared by his colleagues outside the House—especially those with a history of not getting the votes they want. Texas Sen. Ted Cruz introduced a similarly failed constitutional amendment for the upper congressional chamber last year. The politician, who ran for and lost the Republican nomination in 2016 and candidly stated last week that it’s “no secret that I want to be president,” is a decent standard-bearer for the views of his party as a whole. But before Cruz has another chance at the White House, the party remains led by Donald Trump, the man who sparked an insurrection on the nation’s Capitol after losing the 2020 election. A violent assault on the very same Congress that would vote Wednesday to cement this Trump-friendly court. During that election, Trump notoriously called for election officials to “stop the count!”—but only in the states that temporarily favored him while thousands of ballots were still being counted. Johnson’s approach to freezing the Supreme Court’s current size, right as its Republican nominees reshape American law, has the same antidemocratic aim. The fact remains that the court-reform debate is raging because we have a high court that is deeply detached from the public. A court committed to implementing the historical will of the long-dead people who first passed a law, while shrugging off the consequences its rulings have on people alive today. A court that avoids contending with ethics complaints against its own members, while blessing ethical violations in the White House. A court that demands the privacy of no cameras in its chambers, while allowing states to invade the private medical decisions of women across the country. A court that anonymously votes behind closed doors in secret rulings, and does so in support of Trump’s not-so-secret effort to disenfranchise votes by mail. Until all of that changes, court reform will be top of mind and top of discussion, no matter what the Republicans try to do before November. Congress Jurisprudence Supreme Court Judiciary Mike Johnson