The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

Court packing is considered the nuclear weapon that may unleash total chaos on the American constitutional system. Even in the face of a highly controversial appointment process to the U.S. Supreme Court during the 2020 presidential election season, scholars caution against the wisdom and utility of resorting to court packing. This Essay makes three bold arguments: First, a President may nominate a candidate to the Supreme Court at any time, including their last year in office; this is true both empirically and normatively.

The notorious gridlock between Congress and the Executive—and often between houses of Congress—this century has created a power vacuum the U.S. Supreme Court has been more than happy to fill. On race, guns, healthcare, marriage, campaign finance, school choice, religious liberty, abortion, voting, and immigration, lawmakers sit paralyzed as the unaccountable third branch decides for 330 million of us what the law is on each of these issues.

Court packing has been, until recently, essentially a pejorative term. Court packing was, politically and constitutionally, “out of bounds,” in other words, “a wholly illegitimate means of seeking to alter existing Supreme Court doctrine.” As a result, “[n]o serious person, in either major political party, suggests court packing . . . .”

That is no longer true.

Lightning struck on September 18, 2020. In a year in which so many unimaginable events had unfolded and were unfolding, the death of Justice Ruth Bader Ginsburg sent shock waves not only through the nation’s legal community, but throughout the country. Ginsburg, a champion of women’s rights as both lawyer and Justice, the multi-time survivor of cancer, the Court’s tiny, surprising, and notorious rock star, passed away at a precarious moment.

hough it might . . . be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable.”

—Alexander Hamilton

We find ourselves in improbable times. The time has come to amend the Constitution to address one of its glaring errors: the assignment of the Senate, and the Senate alone, to provide advice and consent to the President regarding nominations to the Supreme Court.

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus either on what Ryan Doerfler and Samuel Moyn call “personnel reforms”—changes to the selection, appointment, or tenure of Justices—or on what they call “disempowering reforms”—changes that divert some of the judiciary’s authority to the political branches, for example via jurisdiction stripping. I propose a different—and perhaps complementary—reform, which would achieve some of the goals of both types of reform without requiring a constitutional amendment. I propose that the selection of a case for the Supreme Court’s discretionary appellate docket should be performed by a different group of judicial officers than those who hear and decide that case.

This nomination is about more than who occupies one seat on the Supreme Court. It is about more than the legal status of Roe v. Wade and reproductive rights and autonomy, the constitutionality of Obamacare, the recognition of LGBTQ+ rights, or the future of unions and the labor rights movement. It is about more than the adherence and prominence of legal doctrines such as stare decisis and originalism. It is even about more than who will control one of the three branches of government for a generation.

With the nomination of Judge Amy Coney Barrett, the Supreme Court is a Senate vote away from a historic shakeup that will cement a conservative judicial majority for decades. While politicians, scholars, and the media have largely focused on what a Barrett nomination means for the Affordable Care Act and Roe v. Wade, the confirmation of Barrett would significantly impact a wide swath of environmental and climate change cases for years to come.