And Then There Weren’t Nine
By 
The confirmation of Justice Bart O’Kavanaugh makes the serious destabilization of the norms surrounding the Supreme Court even more likely:
The idea that Kavanaugh will work as a consensus-restoring wound healer is absolutely ludicrous to anyone who knows anything about his history. He’s a long-time Republican operative who spent millions of dollars investigating discredited conspiracy theories while serving under Ken Starr’s investigation of the Clintons. His record on the D.C. Circuit, contrary to Collins’s disingenuous attempts to portray him as a moderate, is extremely and consistently conservative. And at his final appearance before the Senate Judiciary Committee last week, he delivered an angry partisan rant (complete with imaginary conspiracy theories about the Clintons) while treating the Democratic senators on the committee with open contempt.
Placing an open Republican partisan who was also credibly accused of attempted sexual assault on the Supreme Court may well be the beginning of the end of a political dynamic that has been very favorable to the Republican Party. On one hand, the Supreme Court has become increasingly conservative, issuing decisions that have eviscerated the Voting Rights Act, largely eliminated the ability of state and federal governments to regulate campaigns’ finance, limited civil rights and consumer protections and attacked the rights of workers — among many other policy results desired by Republicans.
Despite this, Democratic voters historically place less of a priority on the Supreme Court and have a much more favorable view of the court than Republicans. Republicans have been able to have their cake and eat it too, and it’s a major reason Donald Trump is sitting in the White House.
It seems likely that this will not continue. Democrats are now much more likely to mobilize against an even more conservative court. Four members of this court have been nominated by Republican presidents who lost the popular vote; Kavanaugh will become the ultimate symbol of a Republican takeover of a court that fewer and fewer Democrats will recognize as legitimate.
But how might Democratic leaders respond?
The most natural place to start is with the possibility of impeachment. A focus on removing Kavanaugh is probably unwise, though not because the idea is bad on the merits. Even leaving aside Dr. Christine Blasey Ford’s credible accusations of attempted sexual assault — which we shouldn’t — his repeated lying under oath during his confirmation hearings would in itself be reason to remove him from the federal bench. And, any congressional investigation run by a Democratic House committee into his shady personal and financial history might well reveal more concerns.
The problem is that while impeachment would require only a simple House majority, it would take a two-thirds supermajority of the Senate to convict and remove him from office. The idea that a dozen or more Republican senators would vote to remove Kavanaugh when only one voted against him is fantastical. The next Democratic House or Senate could conduct the investigation into him that Republicans refused to do, but they are not going to be able to remove him regardless of what they find.
A more likely scenario — especially if a Trumpified Supreme Court not only effectively overrules Roe v. Wade but then keeps striking down legislation passed by the next unified Democratic government — is expanding the size of the Supreme Court. The constitution does not fix the size of any federal appellate court, and the number of justices can be changed with simple majorities of both houses of Congress. Doing so isn’t hypothetical: After the Civil War, congressional Republicans manipulated the size of the court to ensure that it wouldn’t interfere with Reconstruction.
It is true that the most recent serious attempt to expand the size of the Supreme Court — by Franklin D. Roosevelt in 1937 — failed. But this failure was contingent, not inevitable. As Jeff Shesol observed in his comprehensive history of the conflict, had then-Senate Majority Leader Joseph Robinson not suddenly died, the Judicial Procedures Reform Bill of 1937 might have passed. And Roosevelt’s proposal became unnecessary after that because the court’s then-swing justice, Owen Roberts, suddenly began to provide the fifth votes to uphold progressive legislation rather than striking it down. Had the Supreme Court continued to attack the New Deal after Roosevelt’s 1936 landslide victory, it is extremely unlikely that the Supreme Court would have only nine members today.
It’s also critical to remember that Supreme Court decisions are not self-enforcing; they require the active compliance of various public officials. If elected officials simply refuse to implement the court’s decisions, there’s little the court can do about it. And this is, like expanding the size of the court, not merely hypothetical.
For reasons both good (like Abraham Lincoln ignoring the Supreme Court’s holdings on the citizenship of African Americans, or the ability of Congress to enforce slavery in the territories in its infamous Dred Scott decision) and bad (like southern states refusing to implement the court’s order that segregation was unconstitutional for nearly a decade), decisions made by prior courts have been rendered dead-letters by noncompliance. An aggressively partisan Republican Supreme Court that undermines the ability of a Democratic Congress to implement the laws it passes with ad hoc constitutional arguments (while possibly undermining the basic rights of voters and already disadvantaged minorities) is going to find increasing resistance to its decisions.
So, for now, the fate of the Supreme Court rests in the hands of Chief Justice John Roberts. If Roberts — as he did in refusing to vote to strike down the Affordable Care Act — remains the median (albeit not centrist or swing) vote and backs away from repeated conflicts with the next Democratic Congress and president, the nine-justice equilibrium might remain. But if he presides over a Republican super-legislature, or Trump is able to replace Ruth Bader Ginsburg and/or Stephen Breyer with yet more hyper-conservatives, the question becomes how radically the federal courts will be transformed, not just if they have been.
It’s possible that John Roberts will see this coming and make some effort to emulate Owen. On the other hand, Shelby County, Perez, Janus et al. suggest he’ll go more in a “try to aggressively disenfranchise my political opponents” direction.