It’s January 2021. Despite a Biden victory and a newly Democratic Senate, the lame-duck Republicans have confirmed a young, conservative justice and locked in a powerful and durable 6-3 majority on the nation’s highest court. Democratic partisans will be furious at Mitch McConnell’s gaming of the system—and at the undemocratic fact that the party that lost the popular vote in six of the last seven presidential elections now controls the Supreme Court indefinitely. Frustrated and powerless to reverse history, the Democrats will reach for the one weapon in their arsenal to fix this: Packing the court with new justices. It’s true that Congress can shape the size of the court to its political desires. In 1866, with a Congress at permanent war with President Andrew Johnson, it passed the Judicial Circuits Act, which cut the size of the court from nine to seven, and barred Johnson from appointing any new justices. (After Ulysses Grant was elected president in 1868, the number was bumped back up to nine, where it has remained ever since.) Today, one of the more significant institutional voices against expanding the court is … Joe Biden. In July 2019, Biden said “we’ll live to rue that day” if the court was expanded. But that was before the coming war over RBG’s seat. If a new Democratic president and Senate are taking power just after a blatant GOP power grab in the face of the electorate’s choice, any reluctance on the part of Biden or a Senate Democrat would face the full fury of the Democratic base.
So, if Senate Republicans won’t stop McConnell from jamming a justice through the Senate, would Senate Democrats really be constrained by their prior doubts about expansion? One of the likeliest consequences of the confirmation of a “lame duck” justice is a battle royal within the Democratic ranks over just that question—hardly what a new President Biden needs, as he deals with multitrillion-dollar deficits, a still-deadly viral pandemic and lingering economic woes. But if Congress pushes through a restructuring of the court on a strictly partisan vote, giving Americans a Supreme Court that looks unlike anything they grew up with, and unlike the institution we’ve had for more than 240 years, it’s hard to imagine the country as a whole would see its decisions as legitimate. More than 80 years ago, president FDR at the peak of his political power nonetheless found his plans thwarted by members of his own party, who found the cost of tinkering with constitutional machinery too high a price to pay. If McConnell calls a lame-duck session in the face of an electoral loss to lock in a conservative court majority, however, it’s hard to imagine any such concerns staying the hands of Democrats.
