Ok, so what if the Demos take the White House and the Senate? Every piece of major progressive legislation starting with the ACA will be subjected to Supreme Court review based on a 6-3 reactionary bias. Stacking the Court at the last minute is the least looser Repugnants in the Senate can do for their theistic capitalist ideology. The question becomes can the Court be reformed or is the Republic doomed to political musical chairs for its lifetime?
This interesting chart posted at Lawyers, Guns and Money blog shows that the Court has been on the conservative side of the political spectrum for the last fifty years, despite some progressive legislation--affirmative action, environmental protection, gay rights, and reproductive rights--being passed in that time period. That has not stopped a conservative Court from hollowing out progressive precedents with subsequent decisions, e.g., the Voting Rights Act. This trend is the logical consequence of Marbury vs. Madison and In Re Dred Scott, widely considered the worst Supreme Court decision ever. Citizens United is a close second. The chart below tracks the various justices' opinions according to the ideological spectrum:
Two parameters stand out immediately. William O. Douglas was off the charts liberal. No justice has complied a liberal record close to his, but Rehnquist came close to off-setting him during the few years both served on the Court. Secondly, Chief Justice Roberts is close to the median jurist indicated by the yellow line. The yellow line is securely in the conservative zone, and the trend will be more pronounced with the certain confirmation of Judge Amy Barrett. How a Democratic Congress, without a constitutional amendment, can prevent the court tilting even farther right than it has been for the last fifty years is open to dispute. One circumstance is certain, reactionaries will use their super-majority on the Court to block legislation they deem "socialist" or immoral, starting with the Affordable Care Act.
The lone democratic socialist in Congress, Bernard Sanders, says he is against expanding the Supreme Court since it would be subjected to expansion at the cost of its institutional legitimacy every time one party gains ascendancy in the legislative and executive branches. That is a valid point, but what is the alternative? When the country needed the New Deal over the vociferous opposition of capitalists, FDR attempted to "pack" the Court. That attempt failed. (The chart shows the Court veering right in the later thirties.) The truth is that the Repugnants have assiduously installed fellow ideologues on all levels of the federal bench--in essence, packing--during the decades they were in power. Killer alone is responsible for over 200 such jurists. Joe Biden has promised a commission to study the issue of judicial reform because the judiciary is "out of wack". In the Washington swamp, a commission study is tantamount to tabling an idea indeterminately. Judicial reform is badly needed; if it takes a constitutional amendment to limit Supreme Court members and their tenure, making it a more responsive institution, then that is the method we are stuck with under our 18th century constitutional system. Note however, that the number of justices is set by statute (28 USC 1) and has varied during the nation's history.
Meanwhile®, there are steps Congress can take to ameliorate this undemocratic situation without a constitutional amendment*. The idea of creating a judicial override vote by two-thirds majority in both houses appeals to US Person, aka the Khan, as the least disruptive of the current absolute power of judicial review residing in the Supreme Court. There is nothing in the Constitution about judicial constitutional review. See Article III. In an original eruption of judicial activism, the concept was essentially created by Chief Justice John Marshall in the 1803 Marbury decision, which as Judge Barrett pointed out, has become a "super-precedent", or an unquestioned part of our foundational legal structure. With a joint decree of constitutionality, Congress could override a judicial determination that a particular legislative act is unconstitutional in a way similar to overriding a presidential veto. The Supreme Court would then be required by law to consider the legislation constitutional in its subsequent judicial decisions.
Believe in textualism? Chew on the complete absence of judicial constitutional review in the original document. Unless something is done to correct judicial minority rule, Mitch McConnell's "judge machine" will haunt US for decades.
*Impeaching Clarence Thomas for perjury during his confirmation hearing and filing false annual financial disclosures could be a start [see chart above]. Fifteen federal judges have been impeached for perjury. In a historical side note, FDR got his way with the Court eventually "packing" it the old-fashioned way, by attrition.