Wapo: Democrats must consider court-packing when they regain power.

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Should Democrats gain unified control of government in 2021, they ought to consider this more complete story of court-packing. Before contemplating such unprecedented action, Democrats should offer Republicans a truce in the decades-long judicial wars: the illegitimate Neil Gorsuch resigns, and both parties support a constitutional amendment eliminating lifetime tenure on the Supreme Court, capping service at 18 years.

Routinizing court appointments would eliminate their zero-sum character and ensure all presidents get to influence the future of jurisprudence, rather than relying on the randomness of retirements and deaths. Jimmy Carter didn’t get to fill a single seat on the Supreme Court in his four years in office — Donald Trump will soon have two in less than half a term. That unfairness, if left unaddressed, will eventually destroy the legitimacy of the institution itself.

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That’s why, if the offer falls flat, Democrats should move to implement exactly the sort of narrow court-packing plan that Roosevelt refused to accept. While unprecedented, court packing would be a clearly constitutional move by an elected majority. After all, previous presidents and Congresses have changed the size of the court.

It might sound drastic, part of the orgy of norm-violation that has defined the past decade. But it would help reverse something even more threatening to democracy: indefinite minority rule.

Since 1992, Democrats have won 30 million more votes for the U.S. Senate than Republicans. They have won the popular vote in six of seven presidential elections. But the electoral college, the small-state bias of the Senate and the GOP’s potential dominance of the court have thwarted the will of the people.

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David Faris is associated professor of political science at Roosevelt University

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