After stumbling his way through a difficult news cycle typified by contempt for the American public and the press, former Vice President Joe Biden has settled on language that at least superficially justifies his unwillingness to rule out transforming the Supreme Court into a parallel legislature that would exist only to rubberstamp Democratic initiatives. “The only court-packing going on right now is going on with Republicans packing the Court now,” Biden said. “It’s not constitutional what they’re doing.”
To be clear, the line Biden has landed on is not “spin.” “Spin” is a sin of omission, and we are not witnessing the selective elevation of some uncontestable truths to the exclusion of others. Nor is this the clever manipulation of language to suit a preferred political definition. Democrats are not replacing “court-packing,” a phrase imbued with negative connotations, with more ambiguous language. That kind of conduct, while somewhat duplicitous, isn’t uncommon in politics. We are now privy to the wholesale perversion of the truth—a deception so big that giving voice to it serves as proof of your commitment to the cause. And Democrats have risen to the occasion.
Court-packing is not filling existing vacancies on the bench. It is not the Senate’s refusal to fill those vacancies. It is not lobbying justices to retire so as to free up vacancies that the dominant party in the upper chamber of Congress would later occupy. “Court-packing” is the creation of entirely new vacancies on the Court, which are then filled by the party that expanded the bench. In an earlier age in American politics, self-consciousness and a sense of propriety might outweigh the political incentives to give Biden’s fabrication a boost. And if those inducements weren’t enough, the threat posed by media’s hostility toward nakedly mendacious politicians stayed more reckless officeholders’ hands. But those days are gone.
According to Sen. Chris Coons, the effort to confirm Amy Coney Barrett to the Supreme Court despite the ongoing pandemic and with only weeks left before an election “constitutes court-packing.” His colleague on the committee, Sen. Dick Durbin, agreed. “The Republicans raised the issue of court-packing,” he averred. How? “They’ve taken every vacancy and filled it,” Durbin insisted. What is court-packing, Sen. Jeff Merkley asked himself? “Answer: Republicans breaking all precedents in order to completely bias the Supreme Court to produce a legislative outcome,” he claimed, “that they couldn’t win in Congress.”
This isn’t the first time that “court-packing” has been invoked by opponents of the existing constitutional prerogatives around confirming justices. Some Republicans did as much amid their opposition to Barack Obama’s nominees in 2013. But that was a time when you could at least count on the press to correct the record. Today, the incentive structure has changed.
“Republicans have stocked the court with one and soon two justices whose seats they were not entitled to fill,” Washington Post editorial page editor Ruth Marcus contended. “This is slow-motion court-packing in plain sight.” When Senate candidate and Montana Gov. Steve Bullock said he was open “adding justices” to the Supreme Court, the Associated Press rode to his rescue. In a now-deleted sentence, the AP insisted that Bullock advocated “measures to depoliticize the court,” and that expanding the size of the bench is only “a practice critics have dubbed packing the courts.” And, of course, coverage of a subject that reflects poorly on Democrats would not be complete without the observation that Republicans have sought to “weaponize the growing calls for court expansion,” courtesy of the New York Times.
This is all nonsense. This attempt to expand what was until recently the universally accepted definition of court-packing to mean “things we don’t like” is so blatant as to be contemptuous of the public’s intellect. What’s more, the scope of this effort is relatively new. The kind of artless fraudulence on display here is a novel byproduct of the Trump era.
We have seen both sides engage in linguistic campaigns to force reality to comport with their preferred narratives, but those efforts began first with an acknowledgment of that reality. For Democrats, they’re not “entitlements,” they’re “earned benefits.” It’s not “abortion,” it’s “reproductive rights.” They’re “investments,” not something as crass as mere “public expenditures.” As recently as the House proceedings against the president, focus-group testing gave us “bribery,” “extortion,” and “inquiry” in place of the harsher, though more accurate, terms “impeachment,” “removal,” and “quid pro quo.” The GOP is not averse to these practices. For Republicans, it’s not “drilling for oil”—it’s “exploring for energy.” They’re not “tax cuts” but “tax relief.” And levies on estates and inheritance will forever be the “death tax.”
Critics of these attempts at framing an issue in favorable terms deride them as though they were some nefarious neurolinguistic programming effort, but canny semantic games are not alien to political discourse. Those turns of phrase can be slippery, overly simplistic, demagogic, or just downright annoying. They might insult the intelligence of savvier audiences, but their value is in their debatable veracity. Artful “spin” was once measured in the degree to which the practitioner could present a favorable, albeit narrow, version of the facts. Today, political competence is measured in the brazenness of the lie.
The president and his administration deserve plenty of blame for this condition. From “the largest audience ever to witness an inauguration” to closing “all” travel from China at the outset of the pandemic, Trump and his subordinates have deployed mendacities large and small throughout this presidency. There was a time not long ago when Democrats warned that this practice would have a deleterious effect on political discourse, but they seem to have forgotten their own admonitions. The art of politics isn’t in the half-truth anymore but the untruth. And there may be no going back.