Many Democrats remain burning mad at the preposterous intervention of the Supreme Court in the reasoned interpretation of state law by the Florida Supreme Court in 2000. Now that it has become increasingly likely that there will be at least one Supreme Court opening in the next two years, Democrats need to plan now for the battle ahead.

As a guide, they should take more than a passing glance at Franklin Delano Roosevelt's court-packing scheme of 1937. In 1936, the court had nullified as unconstitutional a series of New Deal initiatives, in effect wiping away some of FDR's most far-reaching efforts. Desperate to protect his remaining programs, he proposed expanding the court to 15 members, thereby allowing him the chance to create his own majority. (The court's size is set by Congress, not by the Constitution, so a change would take simple legislation, not a constitutional amendment.)

FDR's plan backfired horribly. While he might have believed that this court plan was no more far-reaching than the creation of public housing or the Tennessee Valley Authority, he had misjudged the reverence in which many in Congress and beyond held the Supreme Court. While he ultimately did win some crucial Supreme Court rulings and was able to install New Dealer Hugo Black on the court, FDR's prestige was tarnished and the momentum of the New Deal slowed.

With a Republican president, Democrats would be politically foolish to raise the issue of expanding the size of the court. But perhaps FDR's proposal, flipped upside down, might yield a useful strategy, with far greater legitimacy, and far greater possibility.

The Democrats should engage in a focused "court unpacking" scheme. Just as Republicans stalled the appointment of more than 60 federal judges while Bill Clinton was president, Democrats should now stall all new appointments to the Supreme Court, as they come available, in what many still consider an illegitimate Bush presidency. With the Senate nearly evenly divided, Democrats could stall many appointments, allowing the court's vacancies to remain, well, vacant. Even if a more liberal-leaning justice such as John Paul Stevens or Ruth Bader Ginsburg retires, Democrats should stall what would be an inevitably conservative appointment.

Should this happen, the court would have to function, just as dozens of other federal courts have over the past decade, with fewer members taking on the burden of administering justice. That some decisions might end in a tie would only suit this era of non-ideological indecision perfectly.

If the Republicans have taught Democrats anything, it is that if you play a truly muscular brand of politics, you can often run out the clock. They did it in Florida in 2000, and they did it in congressional nonconfirmations of judges during the eight years of the Clinton administration.

The Democrats should learn from the masters and unpack this court.

Max Page (mpage@art.umass.edu) is an assistant professor of architecture and history at the University of Massachusetts at Amherst.

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