Sen. Buck has introduced Senate Joint Resolution 3 which would have the State of Indiana directing Congress to call a Constitutional Convention for the purpose of amending the United States Constitution to fix the number of Supreme Court Justices at 9. First of all, I’m on record as saying that a Constitutional Convention is a terrible can of worms to open:
For his part, Long envisions a convention which is narrow in scope. But revolutions often get away from their bourgeois instigators. Once a Constitutional Convention was opened up, I would anticipate radical factions taking over.
Second, there is nothing magic about nine Supreme Court Justices other than that, by blocking President Obama’s nomination of Merrick Garland and ramming through Ruth Bader Ginsburg’s successor, Sen. Buck’s political party has managed to capture a majority of the seats on the Supreme Court. Article III of the Constitution says nothing about the size of the court. The Framers initially set the number at six Justices. In 1801, the number was reduced to five but, before the Court could shrink, in 1802, it was restored to six. As the country grew, so did the Court. It was expanded to seven in 1807, nine in 1837, ten in 1863. In 1866, Congress enacted a plan to reduce the Court back to seven through attrition, but it only got down to eight in 1867 and then was returned to nine in 1869.
As a political matter, I think it would be an extremely heavy lift to get the number of Justices changed. If the People desire a Constitutional amendment to fix the number of Justices, I’d suggest that it go the route of every other Constitutional amendment to date: two-thirds of each house of Congress proposing an amendment and having it ratified by 3/4 of the States.