And Roosevelt, after winning a landslide re-election in 1936, decided to mount an aggressive and improbable campaign to pack the court in his favor — a strategy back in the news now that Justice Anthony Kennedy’s retirement has spurred calls from some quarters for liberals to follow in FDR’s footsteps.

Of course, progressives “are assuming a pretty heroic thing: that they can capture both houses in Congress and the presidency in a relatively short amount of time,” says Tom Ginsburg, an international law professor at the University of Chicago. As of now, Republicans control Congress and the White House; they have majorities in most of the governorships and statehouses too. Nevertheless, here’s the thinking: If Democrats can retake Congress and the presidency, they could propose to expand the Supreme Court — from nine justices to 11 or more. Then a Democrat president could fill those new slots, effectively neutering the court’s current conservative bent.

If that seems drastic, remember a few things. First, no constitutional requirement says there have to be nine justices (in the 19th century, that number changed at least seven times). Second, Democrats (with the help of moderate Republicans) bounced arch-conservative Ronald Reagan appointee Robert Bork in 1987 and axed the filibuster rule for lower court appointees in 2013. Republicans refused a hearing for Barack Obama’s high court nominee Merrick Garland in 2016, then eliminated the filibuster for Supreme nominees in 2017 so they could push Neil Gorsuch through. “It’s been a tit-for-tat game where both sides are escalating,” Ginsburg says. “Where it ends, who knows.”

Read more at OZY