Senator Cruz of Texas on Wednesday reintroduced a proposal to amend the U.S. Constitution and cap the number of justices on the Supreme Court at the current level of nine in order to block Democratic attempts to pack an increasingly conservative bench.

The proposed amendment, which if approved by Congress would later need to be ratified by two-thirds of the states, is being co-sponsored by 10 Republican senators, among them Mike Lee, Tom Cotton, Josh Hawley, and Charles Grassley.  

“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,” Mr. Cruz said. “The Supreme Court should be independent, not inflated by every new administration.”

Mr. Cruz’s proposal follows a similar one introduced last month by Senators Rubio and Risch of Florida and South Dakota. The Republicans’ efforts are seen as pre-emptive moves to prevent increasingly strident efforts by the Democrats to “pack” the court with more liberal voices.  

Even before the contentious decision overturning Roe v. Wade last year, Democrats have been angling to increase the number of justices on the high court in order to water down the current conservative majority. In 2021, Democrats in the House and Senate introduced legislation that would add four justices to the court, but the measure made little headway. It was reintroduced in 2022.

“Weeks after schoolchildren were massacred in Texas, they took away protections against gun violence,” the executive director of Take Back the Court Action, Sara Lipton, said at a press conference last summer. “During the hottest summer on record, they made it harder for the EPA to combat climate change. And in a year where state houses across the country pushed hateful anti-trans legislation, the court eviscerated the boundary between church and state, opening the door to discrimination and violence.”

There is nothing in the Constitution dictating how many justices must sit on the Supreme Court. In its first iteration, via the 1789 Judiciary Act, the court had only six justices. A seventh seat was added in 1807, and eighth and ninth seats in 1837. The court’s current number, nine justices, was established by another Judiciary Act in 1869, and has remained the same ever since.

Previous efforts to pack the court did not go well for those who proposed it. President Franklin Delano Roosevelt’s efforts to nudge the number of justices up to 15 after the court blocked portions of his New Deal met with fierce bipartisan resistance both within and outside the administration. Public outrage was so intense that the Democrats suffered huge losses in the 1938 midterm elections.

In 2021, President Biden — who said during the 2020 campaign that the court was “out of whack” — created a 36-member commission co-chaired by President Obama’s White House counsel to consider and recommend changes to the court. Following six months of public hearings, the commission issued a 288-page report that offered little in the way of concrete recommendations, instead focusing on merely analysis of “the principal arguments in the contemporary public debate for and against Supreme Court reform.”

Following the report’s release, two members of the commission, Thomas B. Griffith and David F. Levi, both former federal judges, said many of the reforms being pushed by critics of the court — including term limits and adding additional members to the bench — are “without substantial merit.”

“They are not related to any defect or deficiency in the Court or its procedures and they threaten judicial independence,” the judges said in their statement. “We must not permit the Supreme Court to become collateral damage in the divisiveness that marks the current age. Nor should we fundamentally alter the Court because of disappointment in particular decisions of the Court. There is far more at stake than the outcome of any case.”