The current discussion about whether Democrats should expand the size of the Supreme Court if they control the 117th Congress is an important one. But it overlooks something equally important. 1/

If Democrats control both houses of Congress and the Presidency, they would *also* have the votes to be able to solve many of the problems with a conservative Supreme Court through ordinary legislation.

A Democratic Congress could end the current anti-ACA lawsuits by reinstating the individual mandate penalty and by making it even more explicit that all provisions of the ACA are severable.

A Democratic Congress could enact a uniform set of federally guaranteed reproductive rights and preempt all state-level attempts to restrict access to abortion.

A Democratic Congress could amend the Federal Arbitration Act so that it does not apply to individuals. Indeed, it could prohibit arbitration clauses in all consumer and employment contracts.

A Democratic Congress could give both Houses of Congress and their committees explicit statutory standing to sue to enforce subpoenas against executive branch officials, with expedited procedures.

A Democratic Congress could enact strong nationwide rules for easy voter registration, plentiful early and absentee voting, and nonpartisan redistricting.

A Democratic Congress could explicitly prohibit discrimination on the basis of sexual orientation and transgender status in employment, education, public accommodations, etc.

A Democratic Congress could abolish qualified immunity for police, and it could create explicit rights to sue federal officers who violate constitutional rights.

A Democratic Congress could amend the antitrust laws to limit market share in mergers, require access to essential facilities, prohibit platform self-dealing, and more.

And this is just a sample of what Democrats could do with unified control of the legislative and executive branches.

Yes, there are other problems that can't be fixed with legislation. A conservative Supreme Court could still use the Constitution to block progressive legislation, create religious exemptions, restrict campaign finance reform, and much more.

But so much of what we think of as "up to the courts" is that way only because gridlock in the other two branches freezes current statutory language. Fix the gridlock, and you can fix the language to take the issue away from the courts.

Congress has shirked its duty to make laws for so long that its muscles have atrophied. If the Democrats take control of Congress, though, they will need to get back in the habit of actually legislating, quickly and forcefully. /end