I. Does Joe Biden take office on January 20 with a united Democratic majority in the U.S. Senate?

I’m not a political strategist or a pollster. I don’t know how the death of Ruth Bader Ginsburg, the machinations of Mitch McConnell, the calculations of Republican Senators, or whatever Joe Biden and Democrats do or say will affect the outcome of the November 3 election.

But whether or not McConnell succeeds in seating a Trump nominee between now and January isn’t as significant as what happens after January 20.

If McConnell’s gambit fails (and a Trump nominee isn’t confirmed), if Joe Biden is elected and takes office, and if Chuck Schumer becomes the majority leader, then Joe Biden will name the justice to replace Ginsburg. If McConnell corrals Republicans to confirm Trump’s nominee, if Joe Biden is elected and takes office, and if Chuck Schumer becomes majority leader, Democrats will be in a position to increase the size of the Supreme Court to 13.

What’s constant: Biden must win and Democrats must control the U.S. Senate. This is a high stakes election. Nothing has changed with the passing of an extraordinary woman with a monumental legal legacy.

II. A separate point: There is a downside to increasing the size of the Supreme Court.

The move would hardly be unprecedented, nor would it be unjustified, as Edwin Chemerinsky notes:

One way for Democrats to make clear they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that, if they take the White House and Senate in November, they will increase the size of the Supreme Court to 13 justices.

The number of justices on the court is set by federal law, not the Constitution. Since its beginnings, it has ranged from having between five and 10 members. Since the 1860s, it has remained at nine.

When President Franklin Roosevelt suggested expanding the Supreme Court in the 1930s to overcome court hostility to the New Deal, he was repudiated for trying to pack the court. But the current situation is different. This would be a response to chicanery by Republicans.

What happened with Garland’s nomination was unprecedented, and Democrats rightly believe it was a stolen seat. After Scalia’s death in February 2016, President Obama moved quickly, nominating Garland the next month.

But such a move would pose a risk to democratic governance, as we learn in Steven Levitsky and Daniel Ziblatt’s book, How Democracies Die. They warn (in Chapter 9) regarding a familiar Democratic activists’ refrain:

In our view, the idea that Democrats “fight like Republicans” is misguided. First of all, evidence from other countries suggests that such a strategy often plays directly into the hands of authoritarians. . . .

And (to cite their admonition regarding impeachment to make a more general point):

Even if Democrats were to succeed in weakening or removing President Trump via hardball tactics, their victory would be Pyrrhic—for they would inherit a democracy stripped of its remaining protective guardrails.

I get it. But in 2020, two years after publication of How Democracies Die, it’s past time to escalate the fight. Trump and the Republican party have trashed way too many guardrails to overlook. And as Trump has become more aggressively authoritarian, we have learned that for Washington Republicans no outrage is too great to accept. Their only calculation is purest power politics with no allegiance to democratic norms or values. The only reasonable option for Democrats (and democrats) is to push back within Constitutional restraints — even if it’s necessary to make basic changes, where there was formerly bipartisan agreement (such as the size of the Supreme Court or the number of states in the union).

Josh Marshall acknowledges the risk, but comes down on the right side of the issue (by my lights):

We are here because of the Republican party’s increasing unwillingness to accept limits on political action. To up the ante on that tendency, to meet it, is itself a grave threat to democratic governance. But an even graver threat is to remove any mechanism of consequences or accountability. Then there is truly no limit or disincentive to corruption, law breaking and bad action. That reality is precisely the one in which we currently find ourselves.