This is not to say that a Republican-controlled Senate doesn’t have the constitutional power to confirm a nominee right now—it clearly does. But in exercising this power, Republicans would be committing themselves to an extreme form of “constitutional hardball”—a term coined by the legal scholar Mark V. Tushnet to describe the exercise of raw political might that, while legally permissible, violates the “assumptions that underpin working systems of constitutional government.” If Democrats gain the Senate and the White House in 2021, they will be faced with the choice of either engaging in reciprocal hardball—by wielding the raw political power to expand the Court, for example—or doing nothing and acquiescing to the breach. The latter strategy is what the law professors Joseph Fishkin and David E. Pozen call “asymmetric hardball”—a situation in which one party plays hardball and the other sits on its hands.
That will do little to restore the legitimacy of the Court, and risks falling victim to a kind of magical thinking—belief that legitimacy is achieved by simply pretending it exists rather than building broad public and political trust. As paradoxical as it sounds, a Democratic plan to add seats to the Supreme Court could be just what’s needed. This is what Pozen refers to as “hardball as anti-hardball”: that is, playing constitutional hardball not to win the game, but to get to a place where the cycle of retaliation and politicization can be ended.
As I argued last week, if McConnell rams through Barrett's confirmation, there is no longer any real legitimacy to the idea that the Court is above politics, so politics is the only antidote. The goal now is to neutralize the court's power to obstruct the legislative process by some theory of interpreting the constitution that locks the country within the mindset of the 18th Century.
Originalism has the patina intellectual sophistication, but it's naively ideological insofar as it validates reactionary interests, as Second Amendment fetishism and Citizens United demonstrates. If people argue that Citizens United and the expansive understanding of citizens to bear arms is constitutionally justified, it only proves that the constitution is ill-adapted to the political realities of the 21st century.
The best suggestion I've heard is to add several new justices, perhaps even to reach a complement of twenty-one justices, each with a limited term, and then institute a system of having them draw lots to take on cases to add a degree of ideological randomness into the process. This would not take politics out of it, but it would blunt its effects.
The bottom line is that the constitution, like any historical document, is vulnerable to a broad range of interpretations. And as with any document, some interpretations are better than others. But if the primary criteria is to stick to what the founders intended rather than to solve real problems, then the original document becomes more of a problem than a solution.
The constitution is not holy scripture. It's time for both Liberals and Conservatives to stop fetishizing the Constitution each from their different ideological corners. Let the legislatures determine policy, not the courts. That's a conservative idea, or used to be. It's time for Liberals to embrace it.