I’ll admit that I haven’t been diligent in keeping up with the fine details of various proposals to expand the Supreme Court, but I assume Paul Campos is just being sloppy when he writes that Kamala Harris, if elected, should make it her first order of business to support “legislation to expand the SCOTUS by at least three seats.” To avoid split decisions, the Court needs to maintain an odd number of Justices, so any expansion would involve an even number. E.g., 9+2=11 or 9+4=13.

Campos does realize that Harris can’t even contemplate this type of reform unless the Democrats’ have a majority in the Senate, and with the certain loss of Joe Manchin’s seat in West Virginia and the strong possibility of losing Jon Tester’s seat in Montana, the Democrats’ current 51-49 majority is in grave danger. Perhaps Tester will pull it out, and the also endangered Sherrod Brown will win in Ohio. Or maybe Tester loses but so does Ted Cruz in Texas or Rick Scott in Florida. There are realistic scenarios where the Democrats keep their 51-49 majority or at least a 50-50 majority with Vice-President Tim Walz breaking ties. On a great night, the Dems might even wind up with an expanded 52-48 majority, but no matter what it will be far short of the 60 votes to overcome a filibuster.

So, the first obstacle for Harris will be to convince the U.S. Senate to change the filibuster rule so that they can pass Supreme Court reform with a simple majority. It won’t take many Democratic objectors to kill this idea. It might only take one. But if Harris really pushes for it, perhaps it is something she can accomplish.

If you’re a student of history, you know that Franklin Roosevelt tried to expand the court in his second term and not only failed but suffered a substantial political backlash. He had been reelected in a landslide and was wildly popular, but people still didn’t like the idea of fussing with the Court for political advantage. We shouldn’t expect an effort to expand the Court now to be popular now either. To me, this argues against making the effort at all unless you’re supremely confident of success.

But it also argues for making the reforms about a lot more than expansion. It should be coupled with something that actually will be popular, including ethics reform and, most importantly, either term limits, age limits or both. The American people don’t like corrupt and unaccountable judges serving lifetime appointments.

As to why the reform is necessary at this moment in history, I think the best argument is the ruling in Trump v. United States (2024) which granted the office of the presidency dictatorial levels of immunity from prosecution. This isn’t about any particular policy, no matter how important women’s reproductive rights are, but about protecting the country from tyranny. It’s a bit like the cleanup from the Civil War, when new amendments needed enactment to safeguard the victory and prevent any backsliding.

In these scenarios we’re envisioning, Harris has won and Trump has lost. And that means Trump will be in court a lot in 2025 answering for his crimes, including his failed 2020 coup attempt. It will be appropriate under those circumstances to run a parallel legislative accountability project which includes expanding the Court so that it can overturn the Trump v. United States ruling. It should be clear that it’s not about the Dodds decision that overturned Roe v. Wade.

All of this is the longest of long shots. But if the Democrats have the power to do it, they should absolutely get right on it immediately after Harris and Walz are inaugurated. And they’re going to have have to add four seats, not two, because the conservatives currently have a 6-3 majority. Changing that to 6-5 won’t be sufficient.

I’m open to ideas on the details, but I’d support a 20-year term and forced retirement at 85 or 90. The current members would be grandfathered. I wouldn’t even mind staggering it so that the new Justices come in with different limits. The first could have a five-year term, the second a 10-year term, the third a 15-year term, and the fourth a full 20-year term. This would assure that all presidents eventually have strong odds of  nominating at least one new Justice.

If these types of reforms are introduced along with strong ethics reform, I think it might have enough popular support that the Democrats will have the courage to push it through. But what we’re talking about here is a volcanic political situation for 2025, with Trump on trial, and President Harris bulldozing the filibuster and packing the Court. As necessary as this all seems, it’s not something that should pursued lightly, or without being clear-eyed about what it might mean for anything else on the agenda. And the effort CANNOT fail.