On Wednes­day morn­ing, short­ly after the Supreme Court announced yet anoth­er judi­cial vic­to­ry for con­ser­v­a­tives with their anti-union rul­ing in the Janus case, Rep. Adam Smith (D‑Wash.) said that ​“the Supreme Court is no longer a judi­cial body.” Instead, he told reporters, ​“it is an arm of the Repub­li­can Party.”

In order to act as a real opposition party and concretely block the Right’s judicial and legislative agenda, Democrats need to accept that the Supreme Court is a political body and seize it.

Just hours lat­er, Jus­tice Antho­ny Kennedy announced his retire­ment — and with it, yet anoth­er oppor­tu­ni­ty for Don­ald Trump to appoint a judge to the bench of the high­est court in the land, firm­ly cement­ing a con­ser­v­a­tive major­i­ty for years to come. This devel­op­ment has wide-reach­ing impli­ca­tions for abor­tion rights, gay mar­riage, gun con­trol, and almost every oth­er social and polit­i­cal issue that could come before the court.

The Left, how­ev­er, still has a chance to fight back and seize the court.

The first step entails rec­og­niz­ing, like Smith did, that the Supreme Court is now a polit­i­cal body. Although Repub­li­cans haven’t explic­it­ly admit­ted this, they clear­ly under­stand it to be the case. Don­ald Trump’s release of a short list of con­ser­v­a­tive can­di­dates for Antonin Scalia’s vacant seat, while still a can­di­date, was an unprece­dent­ed move.

Fur­ther evi­dence of the Court’s politi­ciza­tion can be found in its own rul­ings. Increas­ing­ly, the Court rules 9 – 0 on non-polit­i­cal mat­ters and 5 – 4 on polit­i­cal ones, and the lat­ter deci­sions are almost always along par­ty lines. While Kennedy served as a swing vote in a few key cas­es, he still sided with con­ser­v­a­tives far more often than with lib­er­als on the Court — in 2018, Kennedy sided with con­ser­v­a­tives in all 14 of the ide­o­log­i­cal­ly-split 5 – 4 votes.

So, when push comes to shove, the Supreme Court rules with what­ev­er par­ty or ide­ol­o­gy has the major­i­ty. The Right under­stands this, which is why they’ve pushed so hard to take con­trol of the Court (and the rest of the judi­cia­ry). The Left, too, needs to come to terms with this fact and wage an all-out cam­paign to seize the court.

There are two mech­a­nisms that the Left can rely on to take back the Court: impeach­ing sit­ting jus­tices and pack­ing the Court.

The prece­dent for impeach­ing jus­tices — which only requires a sim­ple major­i­ty of the House and two-thirds of the Sen­ate — can be found in the case of Samuel Chase, appoint­ed to the Supreme Court by George Wash­ing­ton in 1796.

Upon wit­ness­ing efforts by the Anti-Fed­er­al­ists under Thomas Jef­fer­son to weak­en the judi­cia­ry in the ear­ly 1800s, Chase spoke out against the president’s poli­cies. In response, Jef­fer­son worked to impeach Chase. The House of Rep­re­sen­ta­tives impeached him but the Sen­ate did not con­vict him, mean­ing he could remain on the Court. Nonethe­less, the sce­nario is com­mon­ly cit­ed as hav­ing two lessons: that the inde­pen­dence of the judi­cia­ry has to be pre­served and that the judi­cia­ry shouldn’t involve itself in polit­i­cal matters.

Now that the Supreme Court clear­ly has become polit­i­cal, these notions of judi­cial inde­pen­dence serve only to pro­tect those already in con­trol of it. Democ­rats ought to embrace the notion that the mem­bers of the Court lost their priv­i­lege of inde­pen­dence when they became bla­tant agents for their par­ties. If the Democ­rats can gain con­trol of the House and the Sen­ate in Novem­ber, they can begin impeach­ment pro­ceed­ings against con­ser­v­a­tives on the Court.

Impeach­ment is the eas­i­est of the two options to achieve, but the alter­na­tive lies in court pack­ing. There is some prece­dent for this as well. In 1937, after win­ning reelec­tion but hav­ing to watch many of his sig­na­ture New Deal poli­cies fall under the ham­mer of the Supreme Court, Franklin Roo­sevelt pro­posed a nov­el plan: expand­ing the Court. The num­ber of jus­tices isn’t ordained by the Con­sti­tu­tion, but rather by the Judi­cia­ry Act of 1869 — chang­ing the law is, in the­o­ry, a per­fect­ly legal opportunity.

FDR faced mas­sive back­lash for his pro­pos­al. It was wide­ly seen as an unnec­es­sary assault on the judiciary’s inde­pen­dence. At the time, such crit­i­cism of the plan was fair — although the Court was rul­ing with con­ser­v­a­tives, it wasn’t as bla­tant­ly polit­i­cal as it is today. Now, giv­en that we’ve tossed the inde­pen­dence of the Court out the win­dow, court pack­ing is as valid as impeachment.

Court pack­ing isn’t as viable for the left today, how­ev­er. First, such a plan would need to pass through the Oval Office, requir­ing a veto-proof two-thirds major­i­ty in the House and the Sen­ate. Sec­ond, open­ing up more Supreme Court appoint­ments only works if the Pres­i­dent will appoint left-wingers. Nonethe­less, it’s a poten­tial strat­e­gy for the future, when a Demo­c­rat comes into office.

Before impeach­ment or court pack­ing become pos­si­bil­i­ties, how­ev­er, Democ­rats have to take back Con­gress and gain at least a two-thirds major­i­ty in the Sen­ate. In the mean­time, Pres­i­dent Trump has the oppor­tu­ni­ty to ram a Supreme Court nom­i­nee through the Sen­ate before Novem­ber — or so it seems.

Already, numer­ous Demo­c­ra­t­ic leg­is­la­tors have come out in sup­port of hold­ing to the ​“McConnell Stan­dard.” When Sen­ate Major­i­ty Leader Mitch McConnell (R‑Ky.) refused to hold hear­ings on Mer­rick Gar­land, then-Pres­i­dent Obama’s nom­i­nee to replace Antonin Scalia in 2016, he unwit­ting­ly equipped Democ­rats with a pow­er­ful rhetor­i­cal argu­ment on delay­ing the nom­i­na­tion process in an elec­tion year.

McConnell, of course, doesn’t care about hypocrisy or judi­cial inde­pen­dence — he just wants to secure the Supreme Court for the Right. If he has the oppor­tu­ni­ty, he will force any Trump nom­i­nee through the Senate.

As Gre­go­ry Koger writes in Vox, how­ev­er, the Democ­rats can shut the Sen­ate down with a pro­ce­dur­al mech­a­nism. By refus­ing to par­tic­i­pate in roll call votes, Democ­rats can pre­vent the Sen­ate from func­tion­ing until Novem­ber, if nec­es­sary. Doing so means that Democ­rats don’t need to pray pro-choice Repub­li­can sen­a­tors like Susan Collins will join with them.

If Democ­rats take back the Sen­ate in Novem­ber, they can sim­ply refuse to allow hear­ings on any Trump nom­i­nees until the next fed­er­al elec­tion — there is no way Repub­li­cans can push a jus­tice through with­out a major­i­ty. While Democ­rats won’t be able to con­vict jus­tices in impeach­ment tri­als with­out a two-thirds major­i­ty, they can bide their time and allow the Court to rule split — or with Kennedy hang­ing onto his seat while he waits for his replacement.

These are all rad­i­cal mea­sures that appear to be shat­ter­ing a bipar­ti­san con­sen­sus around judi­cial non­par­ti­san­ship and inde­pen­dence. How­ev­er, the Supreme Court isn’t liv­ing up to its own non­par­ti­san and apo­lit­i­cal man­date — and with the incred­i­ble pow­er it wields in our sys­tem, allow­ing it to go on unchecked would be dis­as­trous for the country.

In order to act as a real oppo­si­tion par­ty and con­crete­ly block the Right’s judi­cial and leg­isla­tive agen­da, Democ­rats need to accept that the Supreme Court is a polit­i­cal body and seize it.