The right won its generational control of the Supreme Court according to the rules of the game. The problem is that the rules keep changing, and the rules are stupid. jonathanchait writes on how Democrats can reform the Court
Conservatives met the leak of the Dobbs draft with a paranoid suspicion — it was too good to be true; liberals must have exposed the incipient ruling in a plot to undermine it — that has given way to a giddiness bordering on ecstasy. It is not merely that they have prevailed in their half-century-long quest to overturn Roe. It’s that the boldness of the decision heralds more such victories to come.
The rules of the game place an enormous amount of power in the hands of a small number of lawyer-politicians who can simultaneously navigate elite legal institutions while signaling their ideological reliability to party insiders. The justices may be performing different roles for their coalition than elected officials, but they operate in the same network and share political objectives.
Because Republican justices have been both less susceptible to illness in their old age and more committed to their party’s legal cause, their party has won the game. Democrats have won five of the past eight presidential elections, but Republicans have appointed six of the nine justices and 16 of the past 20.
Aware of the moral precarity of their precious legal majority, conservatives are already acting to sacralize it. They have bitterly depicted any criticism of the process as tantamount to insurrection.
Packing the Supreme Court has had a bad odor since Franklin Roosevelt attempted it in 1937 and was rebuked by members of his own party. Roosevelt was not the first president who sought to change the number of seats on the Supreme Court. The number is not set by the Constitution and changed several times during the 19th century, more than once in order to alter its ideological composition.
Republicans naturally oppose both packing the Court and reforming it and have generally conflated the two as “packing.” But these measures have different implications and theories. Court-packing fellows the theory that Democrats are entitled to violate norms and take more Court seats since Republicans did the same . Reforming the Court is designed to reduce its partisanship and make it harder for either party to gain a permanent advantage.
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