David Super's post on Court-packing properly sees Court-packing proposals in a larger political context. Rather than assuming that the proposals would be implemented in a politics-free world, he knows that they can succeed only if Democrats control the Presidency and both houses of Congress, and that Republican retaliation could occur only after Republicans regained control of all three (although that point gets a bit blurred because of his attention to the Senate -- Court-packing will stick as long as Democrats control one of the three elected branches and, in particular, even if they lose the Senate). Important as well, he understands -- as do proponents of Court-packing and indeed of much else in the progressive Democratic agenda -- that enacting Court-packing will require elimination of the legislative filibuster. (In principle, the filibuster could be eliminated for some subset of legislation, as it has been in the budget reconciliation process, but it seems clear to me that Super is right to assume "in for a penny, in for a pound" -- that is, any changes in the filibuster will be comprehensive rather than targeted. Still, I think it worth noting the possibility of targeted changes in the filibuster rule.)

Super observes that much of the progressive Democratic agenda could be enacted through the reconciliation process, and so could be accomplished without changing the filibuster rule. It's worth noting, though, that "much" is not all. In particular, it seems to me quite unlikely that the "democracy agenda" typified by H.R. 1 could be enacted through the reconciliation process. Or, put another way, if Democrats care about the democracy agenda they will have to modify the filibuster rule. (Perhaps we could encourage Democrats to develop a "democracy" rule according to which legislation aimed at advancing democracy would not be subject to the filibuster. Such a rule might be written, I suppose, to include Court-packing as a democracy-promoting proposal.)

But, though Super admirably expands our view of the relevant politics, he doesn't expand it enough. The lesson of board games like chess, go, Diplomacy, and Risk is that you have to pay attention to the entire board. And one part of the board here is the Supreme Court itself. So, suppose Democrats decide that they can get most of what they want through the reconciliation process. They still should worry that the Supreme Court will find their legislation unconstitutional through creative, currently off-the-wall arguments that will become plausible and eventually convincing to a conservative Supreme Court majority. Here's an example: Medicare-for-all or other health insurance plans that eliminate or sharply restrict markets for private health insurance violate an individual's freedom to choose how best to promote her health. (Sure, that's Lochner all over again, but that's hardly a criticism these days from a conservative point of view.) We could go through the same exercise for essentially every part of the progressive Democratic agenda. And, of course, many of the constitutional arguments we could come up with will today be "creative" or "unsound" or "only loosely connected to existing law." But we know enough about the political dynamics of constitutional interpretation to know that those characterizations are not fixed points in the constitutional universe, but result from the current state of political discourse. Change the conditions of the discourse by enacting the progressive Democratic agenda and the characterizations may no longer be apt.

An additional point about watching the whole board: Much of the discussion about Democrats' possible strategies -- on many subjects -- assumes that politics is static, that is, that the array of political forces today is pretty much what the array will be in six months, a year, two years.... Analysts then project today's politics on to programs that can be adopted only in the future. But, of course, politics is dynamic.

And here are two components of that dynamic: First, the Overton window: Merely by taking some policy proposals seriously, politicians can widen the space of "policies worth taking seriously" -- not necessarily the policies the politicians advocate, but policies they would be happy to see adopted.

Second, "new policies make new politics": Adopting and even just advocating for new policies can change the array of political forces. Obamacare is the obviously example, but those who advocate for "judicial reform" think that doing so might mobilize enough Democratic voters to offset the necessarily small increment of already highly motivated Republican voters on the issue of control of the courts. The often-cited polling results, that Republican voters care much more about the courts than Democratic voters do, is relevant only on the assumption that politics is static on this issue. And, I have to note, it seems to me that enough Democratic politicians are talking about judicial reform to suggest that they might be thinking that the issue is one that can (on the margins) affect politics favorably for Democrats.

So, ultimately the case for Court-packing rests on viewing the whole board and the dynamics of political and constitutional argument. You can't stop, as Super does, with a statute's enactment by Congress. [more on the "republic of statutes" to come]