What Can Democrats Do About the Supreme Court?

Jonathan Bernstein: “The first and probably best option is to ‘pack’ it. In other words: Add more Justices. The Constitution doesn’t specify how large the Supreme Court should be, so it’s been set by legislation, and it took a long time for Congress to settle on nine. All it would take to add another one or two or ten Justices would be Congress passing something and the president signing it. Then nominate and confirm the new Justices, and the GOP majority on the Court is gone.”

“The advantage of this is how easy it is. Yes, it would require a nuke of sorts in the Senate – as it is now, the bill could be defeated by a filibuster unless Democrats could find 60 votes, and there’s not going to be any Republican help on it. However, that’s true of most of the Democrats’ democracy agenda, from restoring the Voting Rights Act to statutory DC statehood. My guess is that as long as there are, say, at least 53 Democrats in the Senate they’ll have the simple majority needed to carve out a new exception to the filibuster.”

“The downside of court-packing is that it creates an obvious arms race: Republicans would retaliate as soon as they had the chance by doing the exact same thing.”