They would most likely cite the separation of powers - in upholding Congress's power to expand the size of the Court. There is no constitutional limit on the size of the Court, and that power lies with Congress. It always has. There also is no exception to that power for a willingness to expand the Court for baldly partisan reasons.
Is it a bad idea? Yes, but the remedy is at the ballot box. And of course, it will make a mockery of the Court. What will happen when the GOP regains power? They'll expand the Court again for their own benefit. In 20 years, we'll have 50 Supreme Court justices.
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Last edited: Sep 22, 2020