The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


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.


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.