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.