Jonathan Chait, having committed himself to the notion that the Democratic ticket of Kamala Harris and Tim Walz are actually friends of constitutional democracy and the rule of written law, has to explain away the most menacing aspect of the authoritarian and lawless Harris record: her endorsement of the Biden Court-packing plan, coming as it does after she outright endorsed expanding the Supreme Court in 2019.

If this proposal came from the right (see the reaction to what Benjamin Netanyahu proposed to change Israel’s court system), Chait would be shrieking with alarm. But defend it he does, in an article titled “In Defense of the Biden-Harris Plan to Reform, Not Pack, the Courts.”

Chait effectively acknowledges that the Biden-Harris plan is unconstitutional, which he treats as a good thing: “The whole thing is almost certain to be struck down by the Supreme Court.” But he doesn’t say why. A reader of his piece will not even be introduced to the two biggest problems with the Sheldon Whitehouse–led effort that Biden and Harris have endorsed: It would attempt to eliminate constitutionally mandated life tenure by passing a statute, and (in order to have the desired effect of removing the current majority) it would apply retroactively, to throw three sitting justices (Clarence Thomas, Samuel Alito, and Chief Justice John Roberts) off the Court.

The notion that we should rest easy at Harris’s pledge to violate the Constitution because the Court would stop her is not reassuring — especially given that, if a plan is passed and goes all the way to the Court for decision, we can expect a sustained campaign from the White House to delegitimize the Court (or rather an escalation of the campaign already being run by Whitehouse, Chuck  Schumer, Dick Durbin, Ed Markey, Ron Wyden, and other Senate Democrats) and, most likely, an effort to intimidate the justices by rallying the sort of mass protests that Netanyahu’s opponents deployed in the spring of 2023.

None of this would be healthy for our system. And it would be shocking, if it were not so predictable, that Chait has learned nothing from the experience of January 6 about the hazards of the presidency being used to summon mobs against another branch of government.

Chait argues that Democrats are unlikely to pull off taking the Senate, also winning the House, and abolishing the filibuster. It’s true that Republicans currently stand good odds of winning 51 or more Senate seats. But it is not certain — and the people arguing that this is unlikely are almost all (like Chait) pulling very hard for Democrats to hang onto Senate seats in Montana and Ohio or knock off Republican senators in places such as Texas and Florida. “I’m not likely to get what I want” is a poor argument for seeking power. And as we’ve seen in the past, it doesn’t take much to flip a chamber with a one-seat majority, sometimes due to a death or resignation before the next midterm election. Unlike in the Republican caucus, where Donald Trump’s musings about eliminating the filibuster were met mostly with hostility, the filibuster was saved from Joe Biden and Kamala Harris in 2021–22 only by Joe Manchin and Kyrsten Sinema, both of whom are retiring. Chait himself has scorned defenses of the filibuster. And if Harris got the plan through, I suspect that Chait would not denounce it but brand it “a procedurally fair idea to correct undeniable problems in the status quo.” I suspect that because he does so in this very article.

For good measure, Chait misleads on the history. He complains that Republicans “discard[ed] an old norm to deny an incumbent president a vote on a Court vacancy,” but as I’ve detailed before here and here and here, that’s not so. He claims that Republicans had an advantage over Democrats in “getting their justices to play the strategic retirement game in a more ruthlessly partisan fashion,” whereas “Thurgood Marshall and Ruth Bader Ginsburg tried and failed to outlive Republican presidents.” Of course, Antonin Scalia died on the bench just as Ginsburg did. And while Marshall retired, he did so 11 years into Republican control of the White House after three straight popular and electoral Republican landslides — but he didn’t step down until Democrats held the Senate. By contrast, two of the Court’s three current Democrat appointees (Elena Kagan and Sonia Sotomayor) replaced Republican appointees (John Paul Stevens and David Souter) who chose to retire under Barack Obama, while Stephen Breyer joined the Court when Nixon appointee Harry Blackmun retired under Bill Clinton; Breyer then retired under Biden and was replaced by Ketanji Brown Jackson. Ginsburg herself joined the Court when JFK appointee Byron White waited for Clinton before retiring. And that’s before we get into the sordid saga of Earl Warren conspiring with LBJ in 1968.

Chait cites a Politico article as support for the proposition that “Harris’s own commitment to the issue is minimal, as activists supporting it lament.” But that’s not what the article says: Harris may be hesitant to talk about the issue on the campaign trail for obvious reasons, but Josh Gerstein and Samantha Latson in fact report that “there are small signs that, if elected president, Harris would prioritize the issue more forcefully than Biden ever has.” They note — as Chait does not — Harris’s endorsement of Court-packing in its 1937 form in 2019. They observe that “one of the top campaign aides at her side is Brian Fallon, a leading voice on the left for court expansion and other overhauls.” The one skeptical activist they cite is reassured by Fallon’s presence on the campaign. They quote Whitehouse suggesting that it’s been Biden holding Harris back:

Sen. Sheldon Whitehouse (D-R.I.), the Senate’s harshest critic of the Supreme Court, said he has long seen Harris as receptive to his reform efforts. But he viewed her latitude as limited given Biden’s previous stance opposing significant changes. “Her staff and mine have been in touch through the administration — off and on, I would say — because I saw her as an ally who could be willing to take a more aggressive position on the judiciary issues we were dealing with,” Whitehouse told reporters Monday.

None of this sounds much like a lament. It sounds like people hoping they can gain power so they can use it after the election.