Following up on Tom’s post this afternoon, we will see the Supreme Court go from 9 seats to 11 and then 13 or more by the time my preschooler is done with college.
The scenario is simple.
Let us imagine that there is a Republican trifecta, House, Senate and White House. Given the way the House is gerrymandered, the House leans Republican through at least 2022 and more likely through 2032. The Senate is a flip a coin proposition, and sooner or later there will be a national election with a Democratic incumbent who either was a putz or simply got caught with a moderate recession six to twelve months before voting started. This is not an unlikely scenario at some point in the next decade.
At the same time there is a liberal majority Supreme Court with nine justices. It is either 5-4 or 6-3 as President Clanders appointed tree or four new judges in 2017-2018 and dropped the average age of the Court from the late 60s to the mid-50s. The oldest justices are reliable conservative votes. This court’s configuration would be locked in for a decade or more assuming no unusual health events.
That Supreme Court slaps down several Republican priorities (it could actually define what a substantial burden is for Casey, it could say the 15th Amendment is still operative etc).
There is nothing in the Constitution which specifies how many Supreme Court seats are needed. That number has changed several times in the past two hundred years. The only reason why it has not changed is institutional norms that the Supreme Court should have nine justices and it should not be packed.
Norms don’t mean much as the slow moving constitutional crisis of the past twenty years has been that norms which previously precluded actions are not severely punished. Threaten default, no electoral consequences. Shut down the government, minimal electoral consequences. Blockade the Supreme Court in 2016 for the hell of it, few long term consequences.
There is nothing to stop an ideologically and procedurally unified party that has control of the House, the Senate and the White House from expanding the Supreme Court from nine Justices where there is a 6-3 majority against the temporary trifecta to thirteen Justices. The four new seats would be quickly filled by majority vote in the Senate and switch the Court from an anti-Trifecta majority to a pro-Trifecta majority.
The same logic applies to the circuit courts as it is a logical extension of the 2013 blockade that led to the nuclear option to flip control of the DC Court of Appeals from Republican appointed judges to Democratic appointed judges.
And once this happens once, any trifecta will have to engage in this same behavior to lock down their policy preferences under future divided government.