The resolution only looks legitimate if the court’s the obstructor.

If systemic threats sometimes justify constitutional hardball, then scholars of democratic erosion and resilience are in a good position to help policymakers reflect on how such tactics can be deployed in maximally legitimate fashion. One issue here is timing – that is, how to know when we have reached the point where hardball tactics are merited. With regard to Court expansion, both its normative legitimacy and its political viability are likely to increase if and when the Roberts Court acts as a partisan roadblock to a Democratic administration. If the conservative justices refrain from doing so, they may be able to forestall Court reform. But the historical pattern suggests that emergence of an obstructionist Court is likely, at which point Democratic Court reformers will be emboldened. I have argued that judicial obstruction of legislative expansions of voting rights (and related democracy reforms) would provide particularly weighty justification for Court reform. In theory, the threat of such judicial contributions to democratic erosion might justify preemptive action – for example, expanding the Court before it eviscerates a new voting rights act – but in practice, such preemptive action would require substantially greater political investment. Convincing the American public that court-packing is called for would be a tall order on any occasion, but it is more likely to succeed once the Court has begun actively obstructing a broadly popular policy agenda.