WASHINGTON — The prospect that Pres­i­dent Don­ald Trump and Sen­ate Repub­li­cans will fill Jus­tice Ruth Bad­er Ginsburg’s Supreme Court seat before the year is out has ignit­ed a call for major changes on the court, includ­ing expand­ing the num­ber of justices.

Some Demo­c­ra­t­ic sen­a­tors, who had been averse to increas­ing the size of the nine-mem­ber court, said in the wake of Ginsburg’s death that the Repub­li­can rush to fill the high court vacan­cy could be a break­ing point.

Mass­a­chu­setts Sen. Ed Markey said on Twit­ter that if Repub­li­cans don’t allow the win­ner of the Nov. 3 pres­i­den­tial elec­tion to select the next jus­tice, “we must abol­ish the fil­i­buster and expand the Supreme Court.”

But the sud­den vacan­cy also is fuel­ing ten­sions among Democ­rats. While some pro­gres­sives are urg­ing pres­i­den­tial nom­i­nee Joe Biden to embrace reforms includ­ing adding jus­tices to the court, he has so far resist­ed embrac­ing such a major change.

Biden, who ran a rel­a­tive­ly cen­trist pri­ma­ry cam­paign and spent 36 years in the Sen­ate, is con­cerned that such moves would wors­en divi­sions dur­ing a par­tic­u­lar­ly polar­ized moment in Amer­i­can history.

Anoth­er wor­ry is that chang­ing the size of the court for the first time in 150 years would come back to bite the Democ­rats, lead­ing to fur­ther expan­sion when Repub­li­cans next con­trol both Con­gress and the White House. Faced with a 6–3 con­ser­v­a­tive court as the new year begins, Democ­rats would need to add four seats to over­come the Repub­li­cans’ edge. With a 15-jus­tice court, just two more addi­tions by the Repub­li­cans would solid­i­fy their advantage.

White House press sec­re­tary Kayleigh McE­nany pushed back against Demo­c­ra­t­ic talk of expand­ing the court, cit­ing Ginsburg’s own words in a 2019 inter­view with NPR in which she said ”pack­ing the court was a bad idea when Pres­i­dent Franklin Delano Roo­sevelt tried it and I’m not in favor of all of that.”

Democ­rats said almost noth­ing about the Supreme Court at their con­ven­tion in August. That changed in an instant over the weekend.

“Noth­ing is off the table” for Sen­ate rules changes if Repub­li­cans quick­ly con­firm a new jus­tice, Sen­ate Demo­c­ra­t­ic leader Chuck Schumer of New York warned in con­fer­ence call Sat­ur­day with Demo­c­ra­t­ic sen­a­tors, accord­ing to a per­son on the pri­vate call who was not autho­rized to dis­cuss it pub­licly and spoke on con­di­tion of anonymity.

If Democ­rats win con­trol of the Sen­ate in the Novem­ber elec­tions, they prob­a­bly would need to get rid of the fil­i­buster, the Sen­ate rule that requires 60 votes rather than a sim­ple major­i­ty for most leg­is­la­tion, before they could move on leg­isla­tive changes that might include the size of the court.

For now at least, Biden is spurn­ing talk of court expan­sion, dubbed “court pack­ing” by its oppo­nents, although the Demo­c­ra­t­ic plat­form does include sup­port for amor­phous “struc­tur­al court reforms to increase trans­paren­cy and accountability.”

Biden believes such a major change would only con­tribute to fur­ther “esca­la­tion” sur­round­ing the courts, said a top Biden aide grant­ed anonymi­ty to speak about inter­nal conversations.

In the Demo­c­ra­t­ic pri­maries, Biden pre­vailed over can­di­dates who sup­port­ed big changes for the court, includ­ing for­mer South Bend, Indi­ana, May­or Pete Buttigieg.

Buttigieg pro­posed expand­ing the high court to 15, but not sim­ply by allow­ing the sit­ting pres­i­dent to ampli­fy his or her ide­ol­o­gy on the bench. His plan would have five jus­tices pre­ferred by Democ­rats and five by Repub­li­cans. Those 10 jus­tices then would select their oth­er five colleagues.

Like Biden, lead­ers of sev­er­al pro­gres­sive groups said their focus is on stop­ping a Trump nom­i­nee. But sev­er­al said in a con­fer­ence call this week­end that they’d con­sid­er all options if they fail. “Noth­ing is off the table. The legit­i­ma­cy of the court and our democ­ra­cy is at stake,” said Vani­ta Gup­ta, pres­i­dent of the Lead­er­ship Con­fer­ence on Civ­il and Human Rights.

It’s been more than 80 years since expand­ing the size of the court has received seri­ous dis­cus­sion. In 1937, Roo­sevelt tried and failed to add seats to a court on which aging con­ser­v­a­tive jus­tices had struck down sev­er­al New Deal pro­grams. Roo­sevelt lost the fight in Con­gress over court expan­sion, though retire­ments soon elim­i­nat­ed FDR’s need for legislation.

One of the attrac­tions of court expan­sion is that it does not require amend­ing the Con­sti­tu­tion, as impos­ing term lim­its on jus­tices might.

The court’s size can be changed by leg­is­la­tion. The num­ber of seats var­ied dur­ing its first 80 years from a low of six at the time the Con­sti­tu­tion took effect in 1789 to a high of 10 dur­ing the Civ­il War. The cur­rent tal­ly of nine jus­tices was set in an 1869 law.

Con­gress might also act to impose term lim­its, but any change is like­ly to draw a legal chal­lenge because the only lim­it set by the Con­sti­tu­tion is that fed­er­al judges “shall hold their Offices dur­ing good Behav­iour.” They can be impeached, but oth­er­wise decide for them­selves when to retire.

Sev­er­al pro­gres­sive groups have been push­ing struc­tur­al court changes essen­tial­ly since Trump took office and appoint­ed Jus­tice Neil Gor­such to fill a vacan­cy cre­at­ed by Jus­tice Antonin Scalia’s death in 2016. Pres­i­dent Barack Oba­ma nom­i­nat­ed Judge Mer­rick Gar­land for the seat, but Sen­ate Major­i­ty Leader Mitch McConnell refused to act on the nom­i­na­tion in the 2016 elec­tion year.

McConnell has said he will press to con­firm Trump’s nom­i­nee to fill the lat­est elec­tion-year opening.

Expand­ing the court “is the only log­i­cal response to Repub­li­cans break­ing their own prece­dent, steal­ing anoth­er seat and con­firm­ing some­one at this late date in the cal­en­dar,” said Christo­pher Kang, co-founder and chief coun­sel of Demand Jus­tice, a lead­ing group urg­ing Democ­rats to embrace changes to the court.

Polit­i­cal sci­en­tist Aaron Belkin, whose Take Back the Court group also favors court expan­sion, said the issue will only grow in promi­nence in the event of Demo­c­ra­t­ic vic­to­ries this fall if a Supreme Court dom­i­nat­ed by con­ser­v­a­tives were then to strike down civ­il rights and oth­er leg­is­la­tion passed by a Demo­c­ra­t­ic Con­gress and signed by Biden.

“The con­ver­sa­tion about court expan­sion is not so much about the court but restor­ing democ­ra­cy. This court is not going to allow a Biden admin­is­tra­tion to restore democ­ra­cy,” Belkin said.

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Asso­ci­at­ed Press writ­ers Alexan­dra Jaffe, Deb Riech­mann and Thomas Beau­mont in Des Moines, Iowa, con­tributed to this report.