Brett Kavanaugh has been confirmed, and he will serve as a justice on the supreme court for the rest of his life. This event assures rightwing dominance of the court for a generation – or so we are told. After all, at 53, he is not even the youngest conservative: Justice Neil Gorsuch is 51. The chief justice, who has been there for more than a decade, is only 63. Justice Ruth Bader Ginsburg, by contrast, is 85, and Justice Stephen Breyer is 80. We are in, it seems, for decades of misery for labor unions, voting rights, regulation of businesses and all the rest.

Or are we? The logic behind this “lost for a generation” stuff is simple enough. There are nine seats on the supreme court. All of its members serve for life. The five-justice conservative majority is quite young and seems healthy. Given all that, Kavanaugh’s confirmation is the final nail in the coffin, isn’t it?

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The ray of hope, if there is one, lies in contradiction of the first of those premises. Nothing in the constitution fixes the number of supreme court seats at nine. The size of the court is set by legislation, and has varied over time. We started with six. We’ve gone as high as 10 (when Abraham Lincoln was president, and Congress worried about a reactionary supreme court invalidating his wartime measures). Only recently, Republicans held the court to eight members for a year in the wake of Antonin Scalia’s death.

So, then, the next time the left has some political power, why not just expand the size of the supreme court and add another handful of justices? Make Brett Kavanaugh a gifted and energetic member of a 10-to-5 minority. Don’t get mad, in other words: get even.

The cost of Kavanaugh's victory? The legitimacy of the US supreme court | Andrew Gawthorpe Read more

This is called “court-packing”. And although it enjoys a long and distinguished history in America, anyone who suggests it today will be met – swiftly – by serious and sober realists, all of whom who are eager to explain the reasons that this cannot possibly work. Their arguments tend to take one of a few forms.

Play Video 3:24 Key moments from Brett Kavanaugh's confirmation battle – video report

First, they say, this idea is counterproductive. If the Democrats pack the courts, Republicans will retaliate by packing the courts even more when next they are in power. (“It’s time,” these people assure you, “for some game theory.”) That is, if the left expands the court’s membership to 15, then the Republicans will expand it to 17, or 19, when they are in power next. And that makes sense until you remember: didn’t the Republicans already adjust the size of the court (shrinking it to eight, by refusing to consider Judge Merrick Garland’s nomination) when they had the power to do it?

And if, in a decade, the right did further expand the court and take back control of it … how would that leave the left in any position that’s worse than now? This objection (“what if they retaliate?!”) feels, in present circumstances, a bit like worrying that if the Allies invade Normandy, the Nazis will shoot at them. It’s not wrong, exactly, but it seems bereft of some of the essential context.

Another objection is more romantic. Court-packing, some worry, would destroy the legitimacy of the supreme court as a non-partisan institution – it would say farewell to the court as a forum where neutral principles, rather than ideology, governs. Whereas the game theorists of the prior objection are mostly annoying, this objection is almost sad: what can one say to it but “Oh, honey?”

Every well-socialized adult must decide for him- or herself the decision that represents, for them, the definitive refutation of this Schoolhouse Rock vision of the American judiciary. Young socialists just coming of age will probably choose Janus v AFSCME – the culmination of a calculated, six-year political hit on public-sector labor unions. Elder Democrats can rally around their disdain for Shelby county (which invalidated a major portion of the Voting Rights Act) or Citizens United (which paved the way for unlimited corporate spending in elections). The truly wizened might remind us all of Bush v Gore (which … well, you know that one).

But this is not a coming-of-age experience limited to the left: even conservatives are eager to explain how Obergefell v Hodges (which recognized a constitutional right to same-sex marriage) or Roe v Wade (which … well, again, you know) or a dozen other decisions prove the court is an institution dedicated to the advancement of elite liberal victories in the culture wars. The point is: if the legitimacy of the supreme court depends on it being an institution above politics, then the Rubicon was crossed – however one counts – quite some time ago. Alea iacta est.

At bottom, though, opponents of court-packing have a burden to supply a superior alternative. The court is firmly in the grips of young conservatives who will serve for decades. What is to be done? Writing more persuasive briefs is not a hopeful strategy. Term limits don’t even begin to solve the problem. Accepting defeat is a non-starter. And so although court-packing is deservedly controversial, its skeptics on the left must nonetheless answer a question to which they have yet to supply a convincing answer:

Do you have a better idea?