OK this tweet, posted during the ACB Nomination in the Rose Garden, was an obvious reference to the real threat of a Democratic court-pack should the GOP Senate confirm RBG's replacement.

But let's just unpack how Pyrrhic her confirmation really would be... https://twitter.com/MikeSacksEsq/status/1309963118454415360

Republicans now have a solid 5-justice majority to achieve the full conservative legal agenda.

Voting rights, abortion rights, corporate rights, separation of powers, death penalty, affirmative action, religious liberty.

They've had the votes since Kavanaugh's confirmation.

Roberts has only wobbled when doing otherwise would invite calumny on the conservative legal project and hurt Republican electoral prospects...and in every one of his left turns on results in politically salient cases, he's deliberately pushed the law rightward.

In other words, Roberts' "heresies" are when he's TRYING TO SAVE REPUBLICANS AND THE CONSERVATIVE LEGAL MOVEMENT FROM THEMSELVES.

And yet, due to the Blackmun/Stevens/O'Connor/Kennedy/Souter betrayals, the takeaway Republican politicians and the conservative legal movement received from Roberts' heresies have been "he can't be trusted. We must get another vote to make sure his vote is obviated."

It's not enough that he's with them on everything that really matters, and has only jumped when (1) doing otherwise would hurt his movement, (2) the lawyering is beyond terrible, and/or (3) the case is driven by temporal politics rather than lasting ideological import.

Only from this Roberts Derangement Syndrome could the GOP and conservative legal movement look at a real and durable SCOTUS majority and say, "nah, we need one more," EVEN IF THAT TRIGGERS A 7-6 LIBERAL MAJORITY WHEN THEY COULD JUST AS WELL HAVE KEPT A 5-4 CONSERVATIVE MAJORITY!

It's not enough to have a 5-justice majority that will vindicate the movement's ideological agenda when over the past dozen years the ideological agenda has come to equal the party's political agenda.

In other words: if Republicans do it, uphold. If Dems do it, strike down.

Roberts has shown during the Obama and Trump admins that he's not totally all-in on doing whatever the Republican Party wants, when it wants, and how it wants. And this term, we got signals that his colleagues don't trust him to go whole hog on the 2nd Amendment.

But is the possibility Roberts won't go any further on gun rights, and his insisting on going at his pace and his way on the small set of politically-charged cases in which he's not full steam ahead...really worth triggering a court pack that'll make conservatives the minority?

Short of Roberts Derangement Syndrome, this is the only reason I can think why conservatives would want to take this gamble: https://twitter.com/MikeSacksEsq/status/1307448439937130502?s=20

And that gamble only gets more dangerous if there's a post-election confirmation should Dems sweep Congress and White House.

Getting greedy has already led to a COVID outbreak. It could also lead to the destruction of a durable conservative majority they've already got. It could also lead to a downward spiral for the court should Republicans benefit from a backlash in 2022/24 and do their own pack.

Choices are:
(1) 6-3 conservative majority that will get immediately negated with a 7-6 liberal majority that would then uphold restoration of the Voting Rights Act, bar extreme partisan gerrymandering, strike down Voter ID.

(2) existing 5-justice conservative majority.

Which, pray tell, is better for the electoral prospects of the GOP as currently constituted and the jurisprudential dominance of the conservative legal movement's present agenda? https://twitter.com/MikeSacksEsq/status/1313166800075591682?s=20

So, again: why get greedy?

Pyrrhic, indeed.

It's also worth noting that progressive activists and writers were already talking about packing the court before RBG died.

But now that court-packing's associated with filling RBG's seat, Dems won't be able to politically get away with doing it should the nom wait till Jan 20.