Barring some procedural miracles, Amy Coney Barrett is likely to replace Ruth Bader Ginsburg. The polling may be in our favor, but the Senate is not.
What then?
Unless we win the Presidency and the Senate with more than 54 or 55 seats, we are unlikely to get an expansion of the Court. More likely we’d have 50, 51 or 52 (on a really good night) seats and some of those shaky even on ending the filibuster. If we threaten Court expansion with that, we may not even get the filibuster removal, which is the key to any legislative agenda.
Under that assumption, we have to figure out how to shape the 9 to our needs.
First up focus: John Roberts. In a 5-4 court he was thrust into the role of “swing” vote. He’s a definite conservative, but he’s also always keeping an eye on his legacy. A radical right court could be problematic to that legacy. While he can’t swing the Court in a 6-3 scenario, he can still moderate it by deciding to write the opinion in controversial cases by joining the majority and defining things narrowly. Arguments made need to focus on him to try to limit the damage.
So how do we own the Republicans if we can’t expand the Court?
Find ways to get Alito and Thomas and lots of other judges off the Court. One idea: pensions. Republicans love to cut pensions of public employees. So let’s give them what they want. Judges are public employees and they have really fat pensions. While neither Alito nor Thomas are poor men, they aren’t super rich by DC standards and they have both been rumored to want to retire. Perhaps it’s time to add means testing to federal judge retirements for those judges who have not retired as of a certain date. That would give Biden opportunities to target any straggling conservative judges thinking about retiring up and down the Court system.
If we can manage to get rid of Alito or Thomas, then we’re no worse than where we were while RBG was alive. If we get both out, we swing the Court in our favor.
We’re going to have to be creative, we need to start coming up with ideas.