The philosophical case for reforming the Supreme Court — should Democrats take over the Senate and White House in 2021 — is straightforward. While it’s possible that Trump could win re-election, virtually nobody, including Trump’s most fervent supporters, believes that Trump will win the popular vote over Joe Biden; he didn’t over Hillary Clinton in 2016. Assuming that’s correct, it would mean Democrats will have won the popular vote in seven out of the last eight presidential elections. Yet, if a Trump replacement for Ginsburg is confirmed, Republicans’ would have nominated a 6-3 majority on the Supreme Court, a split that would be essentially impossible for Democrats to displace through ordinary means, irrespective of the results of future elections.
That’s not how the system of checks and balances is supposed to work. American political elites have generally supported the strong form of judicial review that emerged in the late 19th century because the Supreme Court generally tracked with the constitutional views of the dominant political coalition. A Supreme Court representing an entrenched, unpopular minority faction that refuses to allow the popular majorities from the other party to effectively govern would be neither democratically legitimate nor politically stable.