The First Rule of Court Packing is you do not talk about Court Packing.

The second rule of Court Packing is you do not talk about Court Packing.

|The Volokh Conspiracy |

I recently rewatched the movie Fight Club for the first time in nearly two decades. The premise of the movie is that there is a secret fight club, where men fight each other. And the club is a secret. Or at least, it is supposed to be a secret. In one of the more memorable scenes, the Tyler Durden character, played by Brad Pitt, announces the rules of fight club.

The first rule of Fight Club is—you do not talk about Fight Club.

The second rule of Fight Club is—you DO NOT talk about Fight Club.

And so on.

I thought of this scene when I watched the debate last night.

Chris Wallace asked Vice President Biden about whether he would support packing the Supreme Court. Biden's response refused to even acknowledge that Court Packing was an option.

Chris Wallace: [I]f Senate Republicans go ahead and confirm Justice Barrett there has been talk about ending the filibuster or even packing the court, adding to the nine justices there. You call this a distraction by the President. But, in fact, it wasn't brought up by the President. It was brought up by some of your Democratic colleagues in the Congress. So my question to you is, you have refused in the past to talk about it, are you willing to tell the American tonight whether or not you will support either ending the filibuster or packing the court?

Biden: Whatever position I take on that, that'll become the issue. The issue is the American people should speak. You should go out and vote. You're voting now. Vote and let your Senators know strongly how you feel.

Trump: Are you going to pack the court?

Biden: Vote now.

Trump: Are you going to pack the court?

Biden: Make sure you, in fact, let people know, your Senators.

Trump: He doesn't want to answer the question.

Biden: I'm not going to answer the question.

Trump: Why wouldn't you answer that question? You want to put a lot of new Supreme Court Justices. Radical left.

Biden: Will you shut up, man?

I think Biden was trying to suggest that the people should vote for him now, so he could then make the decision after the election. In other words, he will not comment on this issue because there is an election going on. Sort of a variant of the Garland rule. In any event, Biden cannot claim to be running on a mandate to pack the Court. He refused to even acknowledge it.

Senator Kamala Harris gave a very similar answer:

"You know, let's. I think that — first of all — Joe has been very clear that he is going to pay attention to the fact, and I'm with him on this 1,000 percent, pay attention to the fact that right now, Lawrence, people are voting," she said.

Because the election is ongoing, it is not proper to talk about an issue on which the people are voting.

Court packing is like Fight Club. We all know it's there. We all know it will happen. It will be bloody and painful. But we can't talk about it till it happens–after the election. And when it happens, there will be mayhem.

NEXT: Democratic Policy & Communications Committee Cites "Unprecedented"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “You know, let’s. I think that — first of all — Joe has been very clear that he is going to pay attention to the fact, and I’m with him on this 1,000 percent, pay attention to the fact that right now, Lawrence, people are voting”

    This sort of language is straight out of Yes, Minister, especially the lengthy throat-clearing preamble building up to…nothing.

    1. She’s learned a lot about obsequiousness and equivocation in a short time. She’ll make a fabulous understudy. Maybe get the starring role if she can knock out her boss and keep her shoelaces tied.

    2. “Yes, Minister” is terrifically funny show until one realizes there isn’t a jot of difference between its art and life.

  2. Biden’s strategy: Avoid commenting on anything, avoid making any positions known, so everyone thinks that Biden’s position is their position….

    1. For this strategy to work best, one needs charisma, a certain relatability, so that people will say “I know this guy is secretly on my side even though his evil advisors are obstructing him.”

      Does Biden possess that sort of charisma?

      1. It doesn’t need to work “best”…. Just vaguely work.

        1. We’ll find out, I guess.

      2. Biden is not charismatic. But, he is not disliked in the way Clinton was. That ought to be good enough for him to win.

    2. It’s hard to believe that it’s necessary to have this conversation when the Republican platform is “we really like Trump and we’re sure whatever he does is going to be good”. But, let’s be clear: Biden has positions on many, many issues. He has a health care plan. He has a tax plan. He has a green jobs plan. Biden and the Democrats more generally have clear positions on vastly more issues than Trump and the Republicans.

      Biden happens to not have a public position on this particular issue, probably because it’s not yet clear what the best approach is and he doesn’t want to lock into a position prematurely, since it turns out to look really bad when you say one thing about how you’re going to approach the Court and then do something totally different.

      1. ” Biden has positions on many, many issues.”

        I think you mean “Biden is told his positions on many many issue”.

        1. Or, Biden has many, many positions on a single issue. Like the $100T Green New Deal.

          1. I still remember his 1988 campaign…

        2. The Kennedys called this a “ball cutter issue”. Joe: “I have never faced the Kobayashi Maru before. What do you think of ky solution?”

      2. I agree. It’s hard to explain to children the pressures of being an adult.

      3. Democrats have “a” “clear” position on multiple issues?

        They have as many positions as they need on as many issues as anyone can think up. Clear they are not. Singular they are not. Implementable they are not.

        1. So Armchair Lawyer thinks Biden isn’t putting forth any positions (except, apparently ones that he’s force fed but I guess they don’t count) whereas you think that he actually has too many contradictory, impractical ones. I’ll butt out of this and let you guys work out who’s right, because it seems pretty dumb to try and get in the middle of all the flailing.

      4. “It’s hard to believe that it’s necessary to have this conversation when the Republican platform is “we really like Trump and we’re sure whatever he does is going to be good”. ”

        You know, the Republicans literally do have a platform. They haven’t changed it from 2016, but they do have one. I’ve read it, and that line of yours isn’t in it anywhere.

        1. RESOLVED, That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda;
          RESOLVED, That the 2020 Republican National Convention will adjourn without adopting a new platform until the 2024 Republican National Convention;

    3. This is a very trying time, and the incumbent has made it worse, but we have to address the problems that affect everyday Americans who work hard to provide for their families and help their communities. They see tremendous injustice out there, and are strongly driven to give every person in this country, citizen or not, the due process they deserve. And there are a lot of bland, generic statements that can be made. I am standing before you now, ready to say — as many times as it takes — that I will repeat every single non-committal feel-good answer in my book of talking points. I will dredge up all the hoary sob stories, all the inspirational but idiosyncratic stories of someone working hard and getting their due (in spite of the economic catastrophe that this administration has unleashed), all the run-on sentences that would make a German philosopher proud of his ability to express a convoluted thought. I will absolutely not stop until I avoid saying anything of substance.

      Thank you, ladies and gentlemen, and I implore you to vote for the Harris-Biden ticket this fall.

      (Of course, he’d actually wander off into “I lost that line” or “you know, the thing” within the first three sentences. But I’m willing to give him credit for what’s on the teleprompter.)

    4. “Biden’s strategy: Avoid commenting on anything, avoid making any positions known, so everyone thinks that Biden’s position is their position….

      I think that this really is a part of his strategy. I also think, though, that on the issue of court-packing, he actually would have been better off going full Trump, and flat out lying.

      “No, Chris, I have no intention of altering the number of justices on the Supreme Court. I think that the American people are sick of this partisan wrangling over the court, and sick of the hypocrisy of the Republicans on court nominations. I don’t want to take us further down that path.”

      Then, if you win the White House, retain the House, and take the Senate, just get on with packing the court. The only criterion in these battles now is “Victory for my side,” so Biden doing this would be right in line with everything that’s happened in the past four years, and a statement like the one I suggested has the added benefit for Biden that it probably would not lose him a single vote, while also gaining him lots of fence-sitters.

      1. 100% correct. Sadly, Biden has too many ethics for him to do this.

        Or, he could pull a Lindsay Graham. Follow Whore Graham’s lead, promise to not pack the court, and then, once in office, say, “But Barrett’s confirmation changed everything.” See, you pick something that has nothing or little to do with the actual issue, and then use it as an excuse for lying. Whore Graham will almost certainly be reelected, so what’s the downside? Okay, a reputation for being, well, a whore and an unethical lying sack of shit. But other than that . . . ?

      2. I agree. Failing to state that you’re not going to pack the court, when asked to do so, seems to have no conceivable political advantage, if you aren’t planning to pack the court. All you can do is frighten middle of the roaders to no purpose.

        If you are planning to pack the court, you don’t want to pay the political cost of a clear commitment ahead of the 2020 election, to pack the court. But neither do you want to pay the political cost, in 2022 and 2024, of breaking a clear, full on, front page pre-2020 election commitment not to pack the court.

        So you sit on the fence and trust that some large proportion of the people who would be frightened off by a clear pro court packing statement, will not connect the dots and be frightened off by the (fairly obvious) implications of your sitting on the fence.

        There is also the tricky matter of the Senate. IMHO, if Joe wins, which seems fairly likely, the Ds are likely to do pretty well in the Senate, and gain enough for a healthy majority.

        But if it’s tight and the Ds only gain four and lose one, to finish up at 50-50, with casting vote for Kamala; Joe Manchin isn’t going to go along with court packing. So against that possibility, where you win the White House but aren’t in a position to proceed with court packing, you want to be able to remove your hand from its cookie-jar-adjacent position, and walk away with an innocent expression.

    5. This is closer to it. Biden wants to appeal simultaneously to progressives who want to pack the court as revenge and moderates who don’t. He is probably also mindful of the fact he would need a compliant Senate to pack the Court, both to authorize the new seats and fill them, and this is not guaranteed. Thus, why take a position now?

    6. Alternatively, you could just read about his policies.

  3. “CLEVELAND, OH—In a brilliant debate performance, candidate Joe Biden offered his most compelling case for election yet, saying: “If I am elected, you’ll get to see what all my policy positions are!”

    After debate moderator Chris Wallace tried to set a diabolical trap for Biden by asking him for his policy positions, Biden shrewdly saw the trap coming a mile away and refused to answer the question.

    “Naw, that’s a trap. A bunch of malarkey, I say!” Biden retorted. “I ain’t gonna tell you nothin’. You’ll just try to use my policy positions to make me look bad! Well, I ain’t fallin’ for it, Jack. No sir, no how.”

    Biden went on to explain that his policies are a “special, secret surprise” and are so special and secret, even he himself doesn’t know them yet.

    “Don’t you want to see my policies?” Biden said. “I know I do! Vote for me in November and you may just get a chance to see them! Besides, Donald Trump? Come on, man! Look at that guy! That guy can’t even bench press a flea-bitten mink coat in a snowstorm!”

    In a closed-door fundraising dinner, Kamala Harris assured supporters that they do in fact have policy positions that can be found on BLM’s website or Das Kapital by a fellow named Karl.”

  4. What mayhem? Elected officials will vote, effecting popular change in fastidious compliance with relevant law and in congruence with ample precedent. Some citizens with unpopular opinions will mutter and sputter.

    1. No Kirkland, what you saw on Tuesday was a simmering rage that is shared by at least 40% of the country. We’ve had most of Trump’s first term stolen from us and if we have the election stolen from us as well, you’re going to see a lot more than muttering and sputtering.

      People are actually starting to talk about a National Divorce.

      1. There will be no such thing. Kleptocrats don’t wanna steal from smaller nations. That’s not where the biggest kickbacks are.

        If a new government layer forms or threatens to form (Quebec, Scottland, the European Union in Brussels) then new kleptocrats will push hard for it. But the existing layer ones won’t.

      2. There will be no divorce or civil war 2 if Biden wins.

        The right will just continue to mutter on the Internet, disavowing any political bombings or mass shootings, and laying plans for the big rejection of Biden in 2022.

  5. Court packing is a short term fix and is irresponsible. Democrats are not as irresponsible as Republicans have been. So I don’t think it’s going to happen.

    1. Perhaps that argument was advanced when the Supreme Court was expanded to include nine positions. I doubt anyone is around to opine whether the usage of “short term fix” in 1869 envisioned a rush to change the Court’s size in just 150 years.

      There are 13 circuits. A Supreme Court of 13 justices seems apt, entirely in line with natural development of that bench.

      1. So why isn’t Biden comfortable saying as much?

        1. Because there is zero upside for giving his position now, and plenty of potential downside. Some questions answer themselves, no?

          1. Yes, I’d imagine that is the actual reason. But it seems hard to square with Arthur Kirkland’s claim that court-packing is inevitable because it’s so overwhelmingly popular.

            1. Campaign pointers from losers — always a special treat.

            2. Probably only overwhelming popular with the Twitter left, and not popular with any real segment of the electorate.

              538’s discussed Court packing, and they said it wasn’t exactly a popular idea, even among Democrats.

              The possibility of a 6-3 liberal majority Court didn’t exactly rile up Democratic voters in 2016.

              I don’t see why Democrats would stand united enough to “solve” the issue of a 6-3 conservative majority.

              1. House majority + Senate majority + presidential signature (or lack of veto) = progress.

                Don’t like it? Re-elect Trump . . . or hold the Senate . . . or take the House.

                Otherwise, watch and learn.

      2. Two of those circuits are of limited jurisdiction. The Fed Circuit is a court of limited subject matter jurisdiction (patents, admiralty, etc.). The DC Circuit is a court whose geographic jurisdiction is limited to include precisely zero states. These courts are not at all like the First through Eleventh Circuits.

  6. Joe Biden, the Paul von Hindenburg for the Loony Left.

    1. Which makes Karmala Harris ….

      1. A handmaiden of the loony left?

  7. The Bush v Gore election ended up being a contest between “anyone but Bush” and “anyone but Gore”.

    This election is going the same way. For the next debate, they should make Trump and Biden stay home and put a Never Trumper up against a Never Biden advocate.

    1. I never understood the need of some to completely fall in love with a candidate.

      1. I don’t need to completely fall in love with a candidate, but it would sure be nice to at least be able to respect them.

  8. Biden and the Democrats in general are going to avoid making any firm promises to move on court packing and statehood for Puerto Rico and D.C. until after the election, because they think (rightly in my opinion) that Independents who are in the “lesser of two evils” mode will see these as pushing the Democrats into the “more evil” column.

    1. At the same time, they’ll avoid any firm promises NOT to move on it, because they really intend to, and would rather not have people throw the broken promise in their faces.

      1. That’s pretty much what I expect. Sort’a voids any claim Democrats have to ethics.

        1. If you define “ethics” ONLY as ‘willing to publicly state policy positions before an election.’ . . . then, yes; you’re correct. I personally think ethical vs not ethical is much more nuanced. And if Biden fails some ethical tests, I’d still prefer someone who scores 73/100, rather than pathological-lying Trump’s score of 14/100.

          You, of course, are free to vote on entirely other criteria.

          1. Trump has largely been halted through normal political processes. It’s not that bad as a net effect.

            To elect someone else screaming for structural changes to America that are naked power grabs intended to make it harder for the political process to halt them is wildly risky.

            1. It seems strange to describe Biden / Harris as “screaming for structural changes” when the exact point of the above post is that they are not even talking about structural changes.

  9. Make fun of him all you want, but it was a smart strategy.

    Think about it: If Biden said he supported court packing, that would be the story of the night (instead of Trump’s bad behavior), and a lot of Independents would choose not to vote for him.

    If he said he didn’t support it, it would also be a bigger story than his non-answer, the left would be mad at him, and he would lose a credible threat to hang over the Republicans’ heads. Say that Barrett doesn’t get confirmed before the election. Would McConnell confirm her anyway if Democrats threaten to pack the Court if he does? Well, probably. And then Democrats can pack the Court.

    1. And Republicans can impeach every one of the packees 2 years later. Nancy Pelosi established a dangerous precedent.

      1. There just aren’t enough superstitious hayseeds or half-educated bigots left in America to position right-wingers for impeachment . . . especially after the House is enlarged, and new states admitted, and the Supreme Court enlarged . . . most especially as our society continues to improve (less White, less bigoted, less rural, less religious) . . .

        1. “There just aren’t enough superstitious hayseeds or half-educated bigots left in America”

          No, but we’ll always have you.

          1. Be nice to RevKirk, his haldol prescription ran out, so he’s especially grouchy today.

      2. They cannot, in fact. I have no idea what precedent you mean. I follow politics pretty closely, but I am not aware of Nancy Pelosi impeaching or attempt to impeach and Trump-appointed judges. If you mean Kavanaugh, (1) she never tried to impeach him, and (2) let’s see if Biden’s appointees have people accusing them of sexual assault under oath (probably not impeachable but see (1)).

    2. In addition, none of it matters if Biden wins but the Democrats don’t pick up enough Senate seats. Therefore, why take a position now?

      The right answer I suppose is, I will investigate that issue and try to determine what is both good for the country and can be achieved.

  10. An even better application of the same rhetorical hook is to substitute “bias” or “discrimination” for “Fight Club.”

    After all, it’s well known that you can get away with most kinds of illegal discrimination simply by keeping your mouth shut on the topic (at least when around anyone who might rat you out). For instance, age discrimination in employment is almost impossible to prove unless the person doing it says something stupid in front of witnesses.

  11. Idiot Trumpists set the bar so low for Biden that even if Trump’s performance hadn’t evoked comparisons to despots past and present, Biden would have won the night just by proving himself compos mentis, which he did. That he was also smart enough to deflect scrutiny of an inevitable policy controversy was icing.

    1. Biden had one affirmative task, and that was to make it clear that he had the energy to last 90 minutes without losing focus. He did do a great job of that . . . I think he was much stronger in the final 60 minutes, in fact.
      Other than that, as the guy with a large lead, all he had to do was look more presidential than Trump, and he did that in spades. Trump was frothing at the mouth, acting like a total asshole (or, if you were a Republican pundit reviewing the debate, Trump was “a bit too hot.”) At one point, when Trump was talking about the economy and jobs, he said 7 consecutive sentences with a lie or misstatement, which is a pretty impressive feat.

      1. Biden is an arsehole and never should have been allowed to repeatedly libel Trump, although Kyle Rittenhouse’s attorney says he intends to sue Biden for libel. This should be interesting.

        https://www.foxnews.com/us/kyle-rittenhouses-attorney-sue-joe-biden-campaign-libel

        1. Someone who has taken the Fifth becoming a party in a civil suit seems a very dumb idea.

  12. Did anyone else see the odds of Civil War 2 went up decently after last night? Some of the gambling sites are now giving 3:1 odds it will happen as opposed to the old 6:1 or 7:1. Problem is if you win, did you really win? And if you get a payout is the currency going to be any good?

    1. The Left is never going to know what hit them…

    2. you wish there were enough trumpistas to start a war.
      trumpistas are fundamentally un American so it does not surprise me that they wish for a civil war

  13. I prefer jurisdiction stripping to court packing. Easier to do on individual issues, and won’t require redesigning tHe SC Chamber.

  14. Anyone who cares about the future of the nation will recognize that Biden possesses the only qualification needed: he’s not Trump. And the best reason to get rid of Trump now rather than four years from now is to get the indictments and trials over with. You know they’re coming, why wait?

    1. Biden is not Trump – but will get the same love & affection that Trump has received over the past 4 years. He won’t do as well.

  15. “A variant of the Garland rule”? Sounds more like an application of the Pelosi rule “pass it to find out what’s in it.”

  16. The appropriate metaphors here do not have to do with Fight Club. They are wood-related–missing the forest for the trees, and complaining about the splinter in your neighbor’s eye while ignoring the log in your own.

    1. Trump has the incompetent bigot vote readily in hand.

      Let’s see how that works in November.

  17. The history of court packing is as long as the history of mob rule as democracy. The first instance did not end well with all 6,000 citizens sitting at the Areopagus.

  18. When your side court packs it is ok, when the other guys do it it is wrong

    not that I expect better from the trump lap dog

  19. The democrats have been chomping at the bit for total control since at least 2000, so they will move quickly to pack the courts to make sure the GReen New Deal, single payer, DC statehood, removing the electoral college, etc doesn’t get overturned. Of course, they might well get voted out before all this comes to pass.

  20. and then there is that 1960s movie “The Guide for the Married Man” where Joey Bishop teaches the lesson “deny, deny, deny”. same initials. perhaps same philosophy?

  21. I think the answer to whether or not there will be additional Justices added is very clearly one of practical politics. (Assuming the votes are there), it will happen if Ginsburg is replaced by a Republican nominated candidate unless a Republican nominated Justice retires during the next term. I suspect, if Justices Thomas or Alito retired, they would leave the status quo relatively untouched.

Please to post comments