Republicans have already packed the Supreme Court. Unpack it by making it bigger.

Now that President Donald Trump has named a third of the highest bench in the land, the Supreme Court is already firmly packed. So are the courts just below it, the 13 Circuit Courts of Appeals.

In fewer than four years, Trump and Senate Majority Leader McConnell have filled every circuit court vacancy, for a total of 53 (though another opened up Monday with the death of a 1st Circuit Court judge). With life-and-death decisions facing a Republican-skewed Supreme Court, it’s imperative, and a high priority, for a new Congress to vote to unpack the courts — just as assuredly and constitutionally as McConnell blithely refused a confirmation hearing or vote on President Barack Obama’s final Supreme Court nominee, Judge Merrick Garland.

During his two terms in the White House, Obama nominated and the Senate confirmed 55 judges to the circuit courts, just two more than Trump installed in half the time. Had the Republicans not controlled the Senate during Obama's last two years, permitting them to stall new appointments, he would have been able to swear in many more.

Court follows election returns

Has Trump almost tied Obama on this score because a president impeached for “high crimes and misdemeanors” values the law more than former constitutional law professor Obama? Because, with his career total of more than 3,500 legal actions (1,900 as plaintiff, 1,450 as defendant, and scores of bankruptcy proceedings involving him and his companies), Trump is more familiar with the procedures and duties of justice? If you believe that Trump reveres the law, I have a stately marble building in Washington to sell you, suitable for a makeover into a high-end hotel.

When it comes to public health, intelligence, climate science and occupational health and safety, among many other spheres, Trump customarily disdains professionals, considering them to be ideological saboteurs, agents of a “deep state” and “disasters.” Apparently, in his fairy-tale America, independent thought is restricted to his courthouse appointments — though not the appointees of previous presidents, Republican or Democrat.

Pretty it would be to think that the federal courts, one of the three major branches of the federal government, are neutrally expert professional bodies that decide cases independent of political atmosphere or preexisting ideological conditions. So maintained Chief Justice John Roberts at his 2005 confirmation hearing when he spoke of justices as “servants of the law, not the other way around." He compared them to umpires who make sure "everybody plays by the rules,” and said the Supreme Court role is merely to “call balls and strikes … not to pitch or bat.”

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A more cynical, or realistic, view is almost as old as the American League. It was articulated in the words attributed, brogue and all, to a fictional Irish bartender by the Chicago humorist Finley Peter Dunne in 1901: "th’ Supreme Coort follows th’ iliction returns." And not only the election returns but the outlooks of the appointing presidents and the tides of sentiment about what constitutes the proper roles of executive and legislative power.

In this case, careful research matches both common sense and humor. A study published in 2006, before either Obama or Trump stepped into the White House, shows that “the political party of the president who appointed the judge matters — judges appointed by Republican presidents vote differently from Democratic appointees across a range of important cases.”

Court sizes are not set in concrete

Is the size of the higher courts sacred? It’s not mentioned in the Constitution. A majority of Congress has the right to adjust the size of the Supreme Court and has done so seven times.

As is well known, President Franklin Roosevelt proposed to enlarge the Supreme Court in 1937, when it had formed the habit of striking down New Deal legislation. In FDR’s case, before Congress was to vote on his “court packing" proposal, two shrewd sitting justices observed the political tides shifting (those “iliction returns” again) and shifted their votes, enabling the court to uphold New Deal pillars like the National Labor Relations Act and the Social Security Act.

Nor is concern about the extremity of the Supreme Court's powers limited to Democrats. Twenty-five years before Roosevelt’s move, his cousin and Republican predecessor, Theodore — quoting his Republican predecessor Abraham Lincoln —warned against courts turning the U.S. Constitution and state constitutions into "a means of thwarting instead of securing the absolute right of the people to rule themselves.” Teddy Roosevelt proposed the popular recall of judicial decisions and proclaimed his stance “the highest and wisest kind of conservatism.”

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The current court is flagrantly packed to protect big business against regulation, executive power against Congress and theocracy against religious liberty.

Packing has become a Republican maneuver at the state level, too. In 2016, the Arizona Legislature added two seats for Republican Gov. Doug Ducey to fill. And Republicans attempted similar maneuvers in North Carolina in 2016 and 2018, only to see them rejected by legislators and a popular referendum.

Such is the strategy of a minority party hellbent on retaining power over the majority. The way to undo these anti-democratic maneuvers is to expand the courts in the name of a democratic republic that would function in fact, not just in name. Starting with the one at the top.

Todd Gitlin is a professor of journalism and sociology at Columbia University and chair of its Ph.D. program in Communications. His 17 books include "The Sixties: Years of Hope, Days of Rage." Follow him on Twitter: @toddgitlin

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This article originally appeared on USA TODAY: Republicans packed the Supreme Court, expand it to repair the damage