Contrast these reforms with the other approach: disempowering the Supreme Court and transferring some of its existing authority to the democratically accountable branches. Since at least the early 20th century, both progressive and conservative groups have called for Congress to strip federal courts of jurisdiction over controversial topics such as labor regulation, flag burning, or gun control. New Deal Democrats even proposed eliminating entirely the Court’s power to invalidate federal legislation. These reforms are fundamentally different from efforts to re-staff the Court; they recognize that the problem is not who serves on the Supreme Court but what power it has.

For that reason, such reforms challenge the legitimacy of allocating to democratically unaccountable judges the final say on such topics. They recognize that the point is not to “save the Supreme Court” but to save the American system of self-government.

A proposal, advanced by 1920s progressives among others, to require six or seven justices (rather than the current five) to agree before declaring a federal statute unconstitutional functions similarly. Such a “supermajority” requirement would have no explicit partisan benefit for one team or the other. What it would accomplish instead is to shift significant power away from the appointed, life-tenured judiciary and to the political branches—Congress and the president.