[Ed. – Tell us more. Something that can be put on a bumper sticker. People need more reasons to vote for Republicans. Note: “pack the court” as used here seems to refer to the FDR proposal to expand the size of benches, including the Supreme Court, so friendly leftist judges could simply be added, rather than waiting for retirements or deaths.]
Even with a unified government, anti-democratic features in the American system, including a Supreme Court that leans right thanks to a stolen seat, will make genuine progress difficult to impossible. So what should Democrats do? The discussion essentially concerned what the legal scholar Mark Tushnet labeled “constitutional hardball”: that is, the use of legal but non-normative means to pursue positive ends. When it comes to the Supreme Court, Millhiser wrote, Democrats “may need to make some very difficult choices”, including whether to pack the Court.
While the judiciary in America has accrued a substantial amount of power, this power is much more fragile than is commonly assumed. Article III of the Constitution gives Congress the power to establish (or not) lower courts as it sees fit, and also to expand the size of the Supreme Court. Congress can also make “exceptions” and “regulations” to the appellate jurisdiction of the courts [in other words, what courts are empowered to rule on – Ed.]. These potentially powerful tools make the judiciary vulnerable to constitutional hardball.