In February 2016, Senate Majority Leader Mitch McConnell made up a rule that presidents may not install a Supreme Court justice in the last year of their terms. Most Republicans fell in line, endorsing this principle on the grounds that the American people should decide who gets to pick the next justice. Many of these same lawmakers are now backing McConnell’s plan to replace the late Justice Ruth Bader Ginsburg in the midst of a presidential election. They have abandoned any real effort to justify their reversal.
This about-face, while degrading, presents Democrats with an opportunity. After more than four years of gaslighting, Republicans have stopped pretending that their blockade of Barack Obama’s nominee, Merrick Garland, was rooted in anything other than sheer partisanship. In the past, the Senate considered a president’s nominee then provided its advice and consent by taking a vote. But Republicans killed that process in 2016 and are now stamping on its remains. They have now established a new rule: The party in power can use every tool at its disposal to seize the Supreme Court, within constitutional limits. If Democrats win unified control of the federal government in November, they must draw from the Republicans’ new rule to expand the court.
Every justification for McConnell’s Supreme Court brinkmanship, in fact, doubles as a justification for court expansion. Republicans’ rationalizations now hinge on the claim that because Republicans can replace Ginsburg, they must do it. “The Constitution gives senators the power to do it,” explained Tennessee Sen. Lamar Alexander, and “no one should be surprised” when they do. “The Constitution gives the President the power to nominate and the Senate the authority to provide advice and consent on Supreme Court nominees,” Utah Sen. Mitt Romney agreed. Republicans have a responsibility “to ensure we have an impartial judiciary that upholds the Constitution and the rule of law,” said Sen. John Thune of South Dakota. “Both the White House and the Senate have some obligation to do what they think in the majority in the Senate is the right thing to do,” Sen. Roy Blunt of Missouri announced on Meet the Press.
The White House has taken a similar stance. Press secretary Kayleigh McEnany accused Democrats of evincing “blatant disregard for the United States Constitution” by opposing an election-season confirmation. “There is nothing in the Constitution that says the president stops being the president in an election year,” McEnany told reporters.
Faced with this onslaught of disingenuity, Democrats have two options. They can accept a half-century of far-right, partisan jurisprudence while protesting that Republicans are hypocrites. Or Democrats can stop complaining about the new rules and start playing by them. The first choice rests upon the theory that it is possible to shame politicians who’ve demonstrated, over and over again, that they have no capacity for shame. The second rests upon the theory that Democrats have an obligation to play constitutional hardball—not just to protect their agenda, but to save the court’s legitimacy and preserve democracy itself. And if that obligation does exist, the proportional response is immediate and unapologetic expansion of the Supreme Court.
There is, of course, a key difference between McConnell’s antics and court expansion: Blockading a Supreme Court nominee for 11 months was completely unprecedented in American history; expanding the court is not. To the contrary, Congress has altered the size of the court many times throughout history, occasionally for political purposes, as the Constitution does not set a fixed number of justices; Congress simply sets the number by passing a law. There have been as few as six justices and as many as 10. In 1863, Congress added the 10th justice to dilute the influence of Southerners on the court. Then, in 1866, Congress subtracted three justices, largely to prevent President Andrew Johnson from making any appointments. Finally, in 1869, Congress brought the number back to nine, allowing President Ulysses S. Grant to fill the newly restored seats.
Indeed, McConnell himself has altered the number of justices to influence the court’s outcomes. By refusing to consider Garland, McConnell reduced the Supreme Court to an eight-member body for more than a year. Multiple Republican senators, including Ted Cruz, said they would not confirm any nominees put forth by Hillary Clinton; their scheme would have reduced the court’s membership indefinitely. Republicans have already legitimized the strategy of modifying the Supreme Court’s membership by changing the number of justices on the bench.
These tactics may be distasteful, but they are plainly lawful. And under Republicans’ current reasoning, if Democrats take power in November, they will have every right—perhaps even a duty—to add seats to the Supreme Court. In Alexander’s words, “no one should be surprised” if Democrats expand the court, since “the Constitution gives senators the power to do it.” After all, in Thune’s phrasing, Democrats must “ensure we have an impartial judiciary,” not one biased toward a particular party. And what about Blunt’s belief that senators “have some obligation to do” what they think a majority of senators want? If a majority of the Senate supports court expansion, don’t senators have an “obligation” to respect their wishes?
This overt politicization of the Supreme Court might constitute mutually assured destruction. The court would lose institutional prestige. Lawmakers would surely be tempted to reject its decisions outright, denying the justices’ authority to say what the law is. But if Trump rams through another justice, that threat will exist regardless of whether Democrats retaliate. Countless Americans will reject the court’s legitimacy as it entrenches more and more Republican policies against the popular will. At worst, expanding the court will neutralize the GOP’s power grab, delegitimize the court, and shift constitutional decision-making back to the democratic branches.
It may be difficult for some Democrats to accept that the old rules governing Supreme Court nominations have gone out the window. There was once, at least in the popular imagination, a playbook, respected by both sides, that kept politics at arms length from the confirmation process. But McConnell lit that playbook on fire in his ruthless crusade to transform the court into an arm of the GOP. Now Democrats have to decide if they will accept a partisan, far-right judiciary for the next generation or use the new rules to respond in kind.