In the past, courts have walled entire areas of American life off from federal action. They’ve put limits on American democracy and blocked the people, through their representatives, from tackling fundamental issues of public concern. During Reconstruction, courts handcuffed the government as it tried to address violence and state-sanctioned racism; during the Progressive Era, they kept Congress from putting the economy under some measure of democratic control.

We’re living through a version of this right now. Under Chief Justice John Roberts, the Court has denied Medicaid coverage to millions of poor people, neutered the Voting Rights Act, authorized new waves of voter suppression, unleashed the power of money for entrenched interests and would-be oligarchs, and opened the door to extreme partisan gerrymandering. And while this Court hasn’t brought the absurd Lochner-era doctrines that effectively made it impossible to legislate working conditions back from the dead, it has, in Justice Elena Kagan’s phrase, “weaponized” the First Amendment to strike down economic regulation and undermine organized labor.

Just to even win power, Democrats will have to overcome major structural obstacles, from the Electoral College in the race for the White House to a Senate that gives disproportionate representation to the most conservative areas of the country. To pass anything more than incremental legislation, they’ll have to overcome (or eliminate) the filibuster. And then they’ll still have to do the hard work of legislating.

In other words, if everything goes right for their party in this best case scenario, Democrats will still face a hostile Supreme Court majority, with like-minded judges throughout the federal judiciary. They can beat Trump at the ballot box, but unless something is done about the judiciary, they will lose to him in the courtroom.

That something is to pack the courts. Yes, there’s the risk of escalation, the chance that Republicans respond in turn when they have the opportunity. There’s also the risk to legitimacy, to the idea of the courts as a neutral arbiter. But Trump and McConnell have already done that damage. Democrats might mitigate it, if they play hardball in return.

At the start of his administration, President Franklin D. Roosevelt implemented restrictions on the ownership of gold, to prevent hoarding and speculation. Congress followed suit, canceling all clauses in public and private contracts that allowed payment in gold. As the Supreme Court considered the constitutionality of these actions, Roosevelt drafted a speech defending his actions as necessary for the “economic and political security of the nation.” He was prepared to challenge an adverse ruling.

To that effect, he quoted President Abraham Lincoln, who said, in his first inaugural address, that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court” then “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”