Donald Trump, aided by Elon Musk and his advisory Department of Government Efficiency (DOGE), is trying to reform an entrenched and wasteful bureaucracy, a nomenklatura hostile not just to him or to Republicans more generally but frequently hostile to fairness and to Americans’ fundamental rights. Whether everything they are trying to do comes within the proper scope of the president’s constitutional executive power or whether some of it is forbidden by duly enacted and constitutional congressional legislation, is in many cases hotly disputed, and some of those disputes have been taken up by federal judges.

Some of those judges’ interventions are, perhaps, reasonable or at least reasoned. Some, like Judge Paul Engelmeyer’s February 8 ex parte emergency order that only career employees have access to vital Treasury records, excluding political appointees all the way up to Treasury Secretary Scott Bessent—even though the secretary and his political deputies are charged by law and by the president with responsibility for all of Treasury’s operations—are abuses of power to rank with those of the Israeli Supreme Court.

In response to perceived and actual judicial overreach, some Republicans—and Elon himself—have suggested impeaching and removing the obstructive judges. In all of US history, no federal judge has ever been removed from office for a ruling, no matter how unlawful or imprudent. As Professor Jonathan Turley of George Washington Law School has argued, impeachment is an inappropriate remedy and even criticism of the judicial branch as a whole on these matters is premature. Reforms that have been overdue since at least the 1990s (if not the 1890s) can wait for final judicial review in the Courts of Appeal and the Supreme Court.

We want federal judges to be unafraid to articulate their views of the law without fear or flattery of Congress and the president, and to that end, we pay them generous salaries for modest duties. Congress has also structured the system such that federal judges have little more hope for promotion than fear of removal and relatively little to gain in salary or working conditions should they be promoted. Same robes, similar spiffy offices, same fear and deference, despite wide variations in fame and in the scope of their powers.

We do, however, need a judiciary dominated by judges whose views on the law and the Constitution comport with those of the American people as expressed through their elected representatives. So while the Constitution makes it hard to remove a judge, and, if that matters in 2025, historical norms weigh against removing a judge for his or her views, the president can add judges at all levels with simple majorities of the House and Senate. Removing a judge for anything other than crime or debility would be an unwise departure from historical precedents. Adding judges (or subtracting them) to ensure that it is Congress’s and the President’s view of the Constitution that prevails is, admittedly, a rare move, but a legitimate one, even if it hasn’t been done since 1869, when Congress, having shrunk the Supreme Court from ten to seven in 1866, increased its size to its present nine. Both times Congress changed the number to ensure a majority committed to racial equality in line with the views of President Grant and to frustrate the views of his predecessor, Democratic President Andrew Johnson.

So is it time to pack the courts? Personally, I agree with Professor Turley that we should wait and see what the judges do in the higher courts. But if Congress and the president in conscience believe that the Constitution and the welfare of the American people require DOGE to do what the courts forbid, let them pass the necessary laws and the president appoint the necessary judges.

So yes, it is too soon to pack. It is not too soon, however, for the president to consult with the House and the Senate majorities regarding legislative fixes for career official intransigence. It is also the time for Mr. Trump to start preparing and publishing lists of candidates aligned with his vision, to be ready as called upon to fill judicial vacancies, old or new.