That aligns him with Senator Ted Cruz, who last week told Dave Weigel, “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

A week before that, Senator John McCain, who is also running for reelection, said, “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” Later, however, a spokeswoman partially walked back his comments, saying the Arizonan will “thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.”

There’s some support for the argument among conservative intellectuals too. Ilya Shapiro argues in The Federalist that the Senate should block any Clinton nominees, saying the Constitution allows it. Michael Stokes Paulsen writes in National Review that the Court should be reduced from nine to six justices. While he supports a legal change in the future, Paulsen says attrition by refusing to confirm would be a good way to get down to six.

Shapiro is correct legally—there’s no explicit, affirmative obligation to confirm. But refusing to confirm is deeply anti-conservative, in the small-c sense of following norms and customs. Meanwhile, the effects of a smaller court are already on display. Because the court now has an even number of members, it can lock in a tie, in which case the lower court ruling is affirmed. This has already happened in a case involving President Obama’s attempt to protect some undocumented immigrants from deportation.

One nightmare scenario circulating among politicos with dark sense of humors imagines that the presidential election could end in a 269-269 electoral-vote tie. A deadlocked Supreme Court, split along ideological lines, would also tie 4-4, leaving the election in dispute, with no clear resolution.

Even without that, ties would rework the shape of the justice system. “As at present, ties would yield no precedent but merely affirm lower courts’ rulings, with more limited effect,” Paulsen writes. “Fewer justices thus means less judicial activism, at least at the Supreme Court level.” Yet that would do nothing to limit judicial activism at the lower-court level. Because the Supreme Court couldn’t set precedent, different circuits could end up with radically different precedents, further balkanizing an already geographically polarized country.

The unstated implication of Cruz and Burr’s argument is that Democratic presidents—whether Obama or a hypothetical Clinton—are less legitimate than Republican presidents, who should be allowed to make appointments on the Supreme Court. The essential motivation is still just the same—ideological disagreement—but there is no longer any pretense of respecting the other party’s mandate. It’s the logical end of the increasing politicization of the court-nomination process.