SJR 2: Call Article V Convention to Fix Supreme Court at Nine Justices

Senator Michael Rohl (R-1/Aberdeen) is the prime sponsor of a noteworthy seven measures in the 2026 Session hopper. His wide-ranging proposals tackle gold severance tax, building permits, rental deposits, ballot questions, unemployment benefits, Legislative term limits, and, today’s topic, stacking the Supreme Court.

Senator Rohl offers Senate Joint Resolution 2, South Dakota’s application to Congress to call an Article V convention to propose an amendment fixing the number of Supreme Court justices at nine.

Senator Rohl justifies SJR 2 with a brief account of the rare, long-ago, mostly politically motivated changes in Supreme Court membership:

Section 1. WHEREAS, the United States Constitution does not set the number of justices that comprise the United States Supreme Court, but leaves it to Congress to ordain and establish both the Supreme Court and all inferior federal Courts; and

Section 2. WHEREAS, the number of Supreme Court justices has been used in the past as a political tool, with the number of justices being increased or decreased in order to allow or prevent presidents from being able to appoint justices to the court; and

Section 3. WHEREAS, in the Judiciary Act of 1789, the First Congress set the number of Supreme Court justices at six, with one chief justice and five associate justices; and

Section 4. WHEREAS, in the wake of the election of 1800, Congress passed the Judiciary Act of 1801, and reduced the number of Supreme Court justices from six to five, effective upon the next vacancy in the Court, in order to deprive the President-elect, Thomas Jefferson, of the ability to fill the vacancy; and

Section 5. WHEREAS, Congress repealed the Judiciary Act of 1801 in January 1802, restoring the number of Supreme Court justices to six; and

Section 6. WHEREAS, in response to the increasing workload of the court, Congress increased the number of justices from six to seven in 1807, from seven to nine in 1837, and from nine to ten in 1863; and

Section 7. WHEREAS, in 1866, Congress again reduced the number of justices from ten to seven, effective upon the seats becoming vacant, to deprive President Andrew Johnson of the opportunity to fill the vacancies; and

Section 8. WHEREAS, in 1869, under President Ulysses Grant, Congress increased the number of justices from seven to nine; and

Section 9. WHEREAS, the number of Supreme Court justices has remained at nine since 1869, despite the attempt made by President Franklin Roosevelt in 1937 to increase the number of justices on the court and reshape the federal judiciary, in response to what Roosevelt perceived as unfavorable rulings made by the court on policies enacted in response to the Great Depression… [2026 Senate Joint Resolution 2, Whereas clauses, as filed 2025.12.19].

Rohl omits the gentle suggestions made during America’s last great days to expand the Supreme Court to thirteen members (which went nowhere and prompted Congressman Dusty Johnson to propose his own nine-cap). Rohl also fails to mention or propose action against the most recent and flagrant politicization of the court by his Republican Party, which let the Court sit at eight for a year to deny President Obama the opportunity to fill a vacancy nine months before the 2016 election and then just four years later rushed to facilitate Trump’s filling of a vacancy just one month before the 2020 election. If Rohl thinks the rare tinkerings and FDR’s failed court-expanding proposal that enumerates warrant an Article V Convention, one would think he would also use the opportunity of that unprecedented response to deal with the real and recent political sabotage Congress exerted on the Court and the President’s authority to fill vacancies.

The Commission President Biden empaneled in 2021 to study possible changes to the Supreme Court noted that Congress considered capping the Court at nine in the 1950s. That proposal passed the U.S. Senate but failed in the House:

Senator Butler’s amendment easily mustered the two-thirds supermajority needed to make it through the Senate. But the measure failed in the House of Representatives. Some lawmakers worried that freezing the Supreme Court’s size would be unwise. Congress might, the legislators argued, need to modify the Court’s size for institutional reasons, such as to enable it to tackle a larger workload. Representative Emmanuel Celler stated that, although he had protested “President Roosevelt’s proposal to pack the Supreme Court . . . with such vehemence that Roosevelt never forgave me for it,” Congress should not “force upon ourselves a rigidity which can in the future make much mischief. . . . In the event there is another such move to increase the members of the Court, the then Congress, in the final analysis, can approve or reject, as is deemed best in the national interest.”

Significantly, both supporters and opponents of this proposed constitutional amendment shared one assumption: Congress has broad formal power to expand or contract the Supreme Court, such that the only way to freeze the size of the Court in place was through a constitutional amendment. But significant disagreement arose over whether fixing the size of the Court at nine members would be wise. Some observers see these congressional debates as reflecting a view that expanding the Court for partisan or ideological purposes is inappropriate, but that changing the size of the Court for reasons of institutional efficiency is legitimate [Presidential Commission on the Supreme Court of the United States, Final Report, December 2021, pp. 72–73].

Nine is an arbitrary number, a historical artifact arising from political and practical motives. The nine-cap does not guarantee optimal efficiency or wisdom, and it does not change the inherent political nature of nominating and confirming Supreme Court Justices. SJR 2 is itself a politically motivated game, an attempt by Republicans, sensing the decline to which their incompetent and self-absorbed leader has doomed them, to maintain the radical Trump majority for as long as possible before good Presidents have the chance to reimpose decency and respect for the rule of law on the United States Supreme Court.

Even if Rohl can push SJR 2 through the Legislature, the nine-cap would have to clear other high hurdles: 33 other states would have to call for a nine-cap convention, that Article V convention would have to pass such an amendment, and 38 states would have to ratify the amendment by votes of their legislatures or by state conventions. I appreciate the breadth of Senator Rohl’s Legislative interests, but his dabbling in constitutional law with SJR 2 promises to be an exercise in speechmaking rather than practical problem-solving.