Why packing the Supreme Court would not be easy for Democrats

The size of the Supreme Court isn’t dictated by the Constitution. It’s set by statute. That’s why the high court has had as few as five justices and as many as 10. The size of the Court has remained locked at nine justices after a dispute over justices in the 1860s.

Liberal Democrats are making lots of noise now about growing the size of the Supreme Court to tilt the now conservative advantage back in their favor. And Republicans are more than happy to deploy Democratic threats as a wedge issue, one week before the election. GOPers warn of what Democrats may try to do if Joe Biden wins the White House and Democrats flip the Senate.

Such chatter is great, pre-election fodder. It electrifies the base of both parties. That’s why Democrats and Republicans alike are willing to dump as much gasoline as possible on these scenarios.

Which brings us back to how one would change the size of the Supreme Court: In one sense, it’s easy. Pass a bill.

But that’s why debates about changing the size of the Supreme Court are inextricably coupled with another conversation about eliminating the legislative filibuster.

They go hand in glove.

And even if the election goes the way Democrats want, there is no way they can potentially pack the Supreme Court without terminating the filibuster.

Let’s say Biden becomes President and Democrats prevail in the Senate with 52 or 53 seats. They decide to increase the size of the Supreme Court.

Democrats are probably able to muscle this through the House – although that’s not a done deal. There are lot of moderate House Democrats who could oppose such a gambit. It’s good politics for them back home to stand in the way of such a bald power grab – and probably, portray it as such.

But let’s say Democrats do advance such a proposal through the House.

The problem is always going to be a filibuster in the Senate. Filibusters are why Republicans have never been able to completely repeal and replace Obamacare. Filibusters are why Democrats can’t move firearms legislation. It’s why bills on coronavirus and police abuse died earlier this year.

Well, if Democrats have 52 or 53 Senate seats, they’re never going to get several Republicans to go along with them to pack the court and hit the magic number of 60. And, it’s not clear that moderate Democrats like Sens. Joe Manchin, D-W. Va., and Kyrsten Sinema, D-Ariz., would go along, too. Frankly, if Democrats do have 52 or 53 seats next year, Arizona Democrat Mark Kelly is likely a senator. Or perhaps Democrat Sara Gideon from Maine. It’s unclear if these prospective senators would go along to break a filibuster. After all, they represent swing states.

So, liberal Democrats could be stuck.

It takes 67 votes to end a filibuster on a Senate rules change. So, if you can’t count to 60, you certainly can’t count to 67.

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