Thread by @jholbo1

Yep. That's the argument. And the counterargument from @billscher. Let's game it out. R's want to maintain the fiction that their 6-3 partisan lock is just for extra safe 'balls and strikes' purposes. This allows them to do a lot without getting R fingerprints on it. 1/

Suppose D's expand the court to 12. I think 12 is a really good number because it doesn't seek partisan dominance. It seeks partisan parity. It suggests a reasonable settlement. 'Split it in half' is good solution to many intractable problems. Why not this one? 2/

It also implies an attractive norm, going forward. No partisan issue is going to get settled without some bipartisanship on the court. If you have 7-5 decisions in favor of some partisan thing, you can be sure it's not just 'activism' - i.e. not another Bush v. Gore or Shelby. 3/

Now suppose R's won't stand for it. Suppose they come roaring back and expand the EC again to 15, giving themselves the 3 Justice partisan edge to which they feel they are entitled. (Mitch's ruthless Machiavellianism, plus eating Trump's dirt, bought them this. Fair is fair.) 4/

This is @billscher's worry. Is it a real worry? No and yes. First, it isn't just going to go on like this, probably. At some point - and pretty quick, I would bet - it's going to get ridiculous in the eyes of the public. Which brings me to two. 5/

If it comes to dueling rounds of 'expand the court', with the D's seeking balance and the R's seeking unchecked dominance, so that they can use the court as a super-legislature, to do unpopular things, at some point it's going to get flagrantly obvious this is going on. 6/

D theories of jurisprudence vary, but do not rest on fictions the way the R 'balls and strikes' theory does. The R strategy for the court depends not just on packing it with hand-picked activists but maintaining a fiction about the non-partisan character of that dominance. 7/

Even if the R's respond to an attempt to balance the court with a counter-attempt to unbalance it right back, such dueling rounds of 'expand the court' will shatter the fiction of 'balls and strikes'. It's hard to believe anyone fails to see it, even now. 8/

But eventually, if things escalate, no one is going to be able to miss it. From the D perspective, this is less bad than what we've got now. All of this gives us reason to believe that the R's actually won't just respond in kind if the D's expand the court by 3, say. 9/

They would see that doing so would 'break' the court, in the sense that it would lose non-partisan legitimacy in the eyes of the voters. But even if R's do decide to risk it and end up 'breaking' the court, in a play for total dominance. 10/

The form of the 'breaking' will be: the voters will see what R's are doing. That's bad, insofar as it will cause the voters to lose faith in the court. But it's not-bad insofar as: if R's really are going to do that, it's better if the voters see it. 11/

To put it another way: there is no possible world in which it is good for voters to regard the EC as politically neutral, because there is no possible world, in which voters have that rosy view, in which R's do not seek 'activist' dominance under cover of that view. 12/

Putting it in Platonic terms: a just man who appears unjust is better than an unjust man who appears just. R's are through-and-through Thrasymachians about the courts. They want the power and, with it, a self-protective veneer of 'justice'. 13/

D's are stuck with being just, but appearing unjust - that is, they have to peel off this charge of 'court packing', which makes them seem grabby. The truth is: there isn't a better option for neutrality on the court than partisan balance. 14/

If Justices know they can't make flagrantly bad calls in favor of their party, because refs on the other side won't back them, neither side will be tempted to make flagrantly bad, partisan calls. There is no better guarantee of 'balls and strikes' than checks and balances. 15/

Actually, that ought to be the Dem slogan: there is no better guarantee of 'balls and strikes' than checks and balances. end/