Jurisprudence

Stop Calling It Court Packing

Sunset over the Supreme Court building.
Samuel Corum/Getty Images

On a recent episode of Amicus, Dahlia Lithwick spoke with Robert Raben, a former senior Hill staffer and former assistant attorney general in Bill Clinton’s Department of Justice, about this week’s Senate confirmation hearings for Supreme Court nominee Judge Amy Coney Barrett, the courts, and the political optics of “court packing.” Below is a transcript, which has been edited and condensed for clarity, of a portion of their conversation.

Dahlia Lithwick: I want to ask you about this thorny issue of court packing. I think this week was the first week that I went all-in on court packing. This is a branding problem. We shouldn’t be calling it court packing. I’d like to call it “systemic structural court reform” or something similarly anodyne. Both Mike Pence and Donald Trump seemed to believe that they’re going to win this election—I think Fox News agrees—if they can just get Joe Biden to admit that he’s got a really, really elaborate court-packing plan that he’s not telling anyone about. That issue has come up now twice in debate. Joe Biden has said, fairly reasonably, that it’s a distraction.

How do you market this? There’s a trap here, right? Biden is being asked: Pledge to do the nihilist thing we’re doing now. That’s the trap, and Biden is not stupid, so he says, “I don’t want to talk about the nihilist thing. Also, it’s not my job as president to pack the court.” How do we talk about this in a way that is better than the current discourse, which seems to involve both sides screaming that they want a promise that it would make no sense for Biden and Harris to give?

Robert Raben: It’s a great question. I’m both intellectually and professionally fascinated by how we get through it, because I’m eager to work hard on exactly what you said. I think after this election, no matter who wins, I am going to dive into the deep end, looking at structural reform, something I, too, was not interested in—or was aggressively opposed to—for 20 years, mostly because I think it’s lazy to either change the rules or change the structure when you’re losing politically. The harder work is to get out there and invest in explaining to the American public the importance of the court and the importance of elections around the court. But we have found ourselves in a place, paradoxically, where the conservatives have effectively packed the courts. They have done what they were entitled to do and then some. Nobody thought that they were entitled to run two nominees in an election year, to block Merrick Garland, and then to run Barrett so close to an election, but they’re doing it.

What I would do if I were Biden: No. 1, that’s packing, so turn the question back on the opponent and explain to people how the Republicans have, either through the rules or by bending the rules, put themselves in a position where they own the courts, and it’s just unfair and it’s wrong. So you’re responding to a crappy situation. Second: Stop calling it court packing. We actually don’t call abortion fetal destruction. We don’t do that for a reason. And the right called them freedom fighters not guerrillas, etc. The world is filled with examples where there’s a phrase that you use, and it turns the people you want to turn on off. You insisting that they’re stupid and that they’re misunderstanding you is ridiculous. So stop calling it court packing. That’s it. Call it structure reform, call it court fairness, call it the death tax. I don’t care what you call it, but stop calling it something that the polls and people tell you is pernicious.

On this sort of thing with Pence and Biden, that’s what we’re down to. Pence, that’s your straw to sort of make sure you win the vice presidency, whether or not Biden answers on court packing. I take that as good news. It means that everything else isn’t working as well as you hoped. I do wish that Biden, in the next couple of weeks, would say what I just said: You’re the court packers, and my job when I’m in there is to unpack and do what we can to restore fairness to the American public.

To hear the rest of their conversation, as well as a discussion with Brian Kalt about the 25th Amendment, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, StitcherGoogle Play, or wherever you get your podcasts.