A group of Senate Republicans on Monday announced a constitutional amendment to fix the Supreme Court at a maximum of nine members, playing defense as Democrats ramp up talk of expanding the court to try to swamp President Trump’s nominees.
The Republican lawmakers also proposed a backup plan to change Senate rules to require a supermajority vote in the chamber before changing the size of the high court.
Sen. Ted Cruz, the Texas Republican leading the effort, demanded action before Election Day. The “foundations of our democratic system” would be threatened should Democrats win control of the levers of government, he said.
“For the sake of our liberties and the future of our country, we must preserve our independent judiciary. These proposals would do just that,” Mr. Cruz said.
Calls to expand the court have surged from the political left, dating to the Democratic presidential primary. But the demands intensified in recent weeks with the death of Justice Ruth Bader Ginsburg and the speed Republican senators have shown in trying to fill that seat with Mr. Trump’s pick, Judge Amy Coney Barrett.
Democrats argue that adding justices would “rebalance” the court by canceling out the votes of Mr. Trump’s nominees.
But the proposition is contentious even among some Democrats.
Rep. Collin C. Peterson, Minnesota Democrat, is leading a push in the House to approve a constitutional amendment similar to Mr. Cruz’s proposal. He, like Mr. Cruz, said adding justices now would threaten the independence of the court.
Democratic presidential nominee Joseph R. Biden has said he is “not a fan” of packing the court with more justices but has refused to rule it out. He said last week that he will tell voters his final stance before the election.
Ginsburg, the late justice and liberal icon whose seat has ignited the furor, was on record opposing changes. “Nine seems to be a good number,” she said.
Justices are granted lifetime tenure under the Constitution, but the size of the court is set by law. The number of justices has ranged from six to 10 over the course of the nation’s history but has been at nine since 1869.
Some have vowed to push the issue of expansion early next year if Democrats gain control of the White House and Senate and retain control of the House in next month’s elections.
To succeed, they likely would need to use the “nuclear option” to change the Senate’s rules and abolish the filibuster altogether. Then they could use their majorities to power through a court change.
Mr. Cruz and fellow Republicans are seeking to take the decision out of Democrats’ hands by writing the number directly into the Constitution.
But amending the founding document is a high bar. It takes a two-thirds vote of each chamber of Congress, then ratification by three-fourths of the states. The most recent successful proposed amendment was submitted from Congress to the states in 1971.
The rules change, Mr. Cruz’s second option, would not require such a heavy lift. It would need only passage by Congress and a signature from the president.
If successful, it would create a parliamentary block on any legislation changing the number of justices. It would take a two-thirds vote in the Senate to waive the block.
Rep. Doug Collins, Georgia Republican, has offered another solution.
He proposed amending the Constitution to create a 10-year delay in effect of any bill to increase the court size. That, he said, would remove the decision from the heat of the political moment but allow for overhaul of the judiciary should it be deemed important enough.
The fight over the size of the court has turned into a bizarre battle over language.
Democrats argue that in trying to fill Ginsburg’s seat so quickly, it’s Republicans who are engaged in “court packing.” Mr. Cruz called that a devious twist of language.
“Packing the court means one very specific thing: expanding the number of justices to achieve a political outcome,” he said. “It is wrong. It is an abuse of power.”