Packing the Supreme Court.

Plus, how many of Trump's supporters are extremists?
Isaac Saul Oct 12, 2020
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free or subscribe for Friday editions, and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 13 minutes.

The court packing debate. Plus, a chance to win a Tangle competition and a question about Trump supporters.

Joe Biden campaigning in Iowa. Photo: Gage Skidmore / Flickr

Win this.

A few months ago, I ran the first-ever Tangle competition and it was a huge success. This week, I’m running it for the second time. Here’s how it works:

  • Share Tangle on social media or forward it to at least five friends. Reply to this email and send me a screenshot of the evidence that you shared the newsletter (it has to be this week).
  • When I get the screenshot, I’ll enter your name into a digital “hat.” For every share on social media, or forward to 5+ friends, you get one entry. So if you share on Facebook, Twitter and forward to 5+ friends, that’s three entries (maximum of 10 entries per person).
  • Once your name is in the hat, you’ll be entered to win one of three prizes: $100 gift card to Amazon or a business of your choosing, a lifetime subscription to Tangle, or 300 words of space to write whatever you want in a Tangle newsletter.*
  • Here is a good link to share: /about

Enter by replying to this email with a screenshot now, and the competition will run until 5 p.m. Eastern on Friday!

*I, of course, reserve the right to reject any inappropriate submissions.

Quick hits.

  1. The FBI arrested 13 men in Michigan who were allegedly plotting to kidnap Michigan Gov. Gretchen Whitmer while targeting police officers at their homes in order to launch a civil war. Authorities announced 13 charges of domestic terrorism against the men, who were part of the Wolverine Watchmen “militia group.”
  2. In the latest Washington Post / ABC News poll, Joe Biden has extended his lead over President Donald Trump 54-42, increasing his lead by two points from the same September survey. For a counterpoint to Trump’s doom, RealClearPolitics reporter Sean Trende explains how Trump could win in an interview with New Yorker’s Isaac Chotiner.
  3. The second presidential debate was canceled after President Donald Trump refused to agree to a remote debate following his COVID-19 diagnosis. The third and final presidential debate will take place on October 22nd in Nashville, Tennessee, and will be moderated by Kristen Welker of NBC News.
  4. The Senate judiciary committee began four days of hearings over the Supreme Court nominee Judge Amy Coney Barrett this morning. Barrett is expected to answer questions this afternoon, and her nomination is likely to go to the full Senate for a vote sometime this month.
  5. The White House walked back President Trump’s demand for a pre-election COVID-19 stimulus bill after furious objections from Senate Republicans. The president had insisted on a $1.8 trillion bill that may have garnered support from Democrats.

Reader feedback.

There was lots of awesome feedback from my coverage of the debates and a special Friday edition I wrote about voter suppression last week.

Responding to the piece on voter suppression, Herman commented that he was wondering if the United States was a true democracy. “I'm living in the Netherlands and everyone who lives here has a right to vote. You are registered at birth in your place of birth and this registration moves with you if you go live in another city. At the age of 18, you automatically receive an invitation for voting when an election happens. You take this election card and your ID to the voting station (there are stations in every district). Everyone can vote but it is not obligatory.”

A reader who went by “S” wrote in to say she felt as though my analysis of the debate was missing the gender aspect. “A good portion of viewers, female viewers, saw the debate filtered through that lens. Not since Clinton’s glass ceiling saga and the double standards that were laid on her as a woman has there been a more prominent moment in the same vein. Harris’s appearance on stage, and particularly when she cut off Pence interrupting her, was a deeply profound moment of female gender empowerment for many American women, particularly on the left.”

Jessalyn from Austin, Texas, objected to me describing Joe Biden as a moderate on abortion. “Biden is nowhere near ‘the center’ on abortion. Most people want there to be the option to abort, especially in the hard cases, but most want there to be limits, even early on. For example, many Americans are uncomfortable with abortions done for the sake of non-life threatening fetal disabilities, uncomfortable with abortion being used as ‘birth control,’ and uncomfortable with sex-selective abortions. Making Roe the ‘law of the land’ would mean all these abortions would automatically be legal in the first trimester.”

What D.C. is talking about.

Court packing. Joe Biden and Kamala Harris have repeatedly dodged questions about what they plan to do with the Supreme Court if they are elected, and the story has only gained steam in the press as a result. On Thursday, Biden told reporters that “You’ll know my opinion on court-packing when the election is over,” a sound bite that immediately reverberated through the conservative media ecosystem.

On Friday, another exchange with a reporter went viral.

“Don’t voters deserve to know…,” a reporter was asking before Biden cut him off, saying, “No they don’t deserve. I’m not going to play his game.” Biden seemed to be referring to Donald Trump and the “game” of getting him to either buck the left-wing of the party calling for court packing or embrace their idea, which is viewed by many as a radical position.

Through each of their debates, both Biden and Harris also refused to answer the question directly, repeatedly pointing the finger back at Senate Republicans and their “hypocrisy.” Republicans, led by Mitch McConnell, infamously refused to take President Barack Obama’s Supreme Court nominee Merrick Garland up for a vote nine months before the presidential election in 2016, repeatedly arguing that voters should have a say over who gets to choose the justices. Now, they are attempting to quickly confirm Amy Coney Barrett just three weeks before the 2020 election.

Below, we’ll explore the arguments about court packing and the Biden-Harris campaign’s refusal to answer this question.

What the right is saying.

The right argues that a non-answer can only lead them to assume that Biden will roll over for the radical wing of the party, and that it’s absurd for him not to respond to such an important question when the country wants an answer to it.

In The Washington Post, Hugh Hewitt argued that court packing “is now a major issue in the presidential campaign because neither Democratic presidential nominee Joe Biden nor his running mate, California Sen. Kamala D. Harris, will say what they think about demands by their party’s radical wing to expand the court… After the convulsions of the Civil War, America’s national institutions needed credibility and stability. Leaving the Supreme Court intact with nine justices helped achieve those aims. The court has gone through long periods of leaning one way or the other on issues of intense public interest, but the court’s overall stability has made it a bastion of public confidence.”

“A whopping 70 percent of Americans view the court ‘favorably,’” Hewitt added, “far and away the most esteemed of any national institution.”

The Wall Street Journal editorial board said “Joe Biden’s apparent view is that voters shouldn’t know what they’re getting until after the election,” lamenting the fact that Biden has dismissed the question about court-packing as “a game.”

“It’s not a game,” the board wrote. “The question is central to American self-government. Democrats on the resurgent left believe the Supreme Court is a de facto second legislature to achieve policies they can’t pass in Congress. And now that judicial conservatives may have a majority on the Court for the first time in decades, Democrats want to add Justices and turn the Court into a de jure House of Lords.”

“Court-packing means enlarging the high court from nine justices, as it’s been since 1869, to as many as 15 — and filling the new seats with left-leaning judges, flipping the court from a restrained, conservative slant to an activist, progressive one,” The New York Post editorial board wrote. “It’s so radical that the Senate (and the public) rejected it even when President Franklin Roosevelt pushed it after the Supremes threw out much of his early New Deal as unconstitutional.

“Moreover, doing it now would require killing the Senate’s filibuster rules entirely — opening the door to lots of other radical legislation, such as the Green New Deal. Biden claims to be a moderate, so why can’t he rule out this madness? Why insist that he’ll only answer after Election Day?”

What the left is saying.

They argue the court packing question is a distraction, and that it’s Republicans who have actually “packed the court” by refusing to nominate Obama’s justice while now trying to ram through Amy Coney Barrett before an election. Some, too, are making the case to pack the court.

In The Washington Post, Ruth Marcus argued that the 2020 election “isn’t about whether to expand the size of the Supreme Court. It isn’t about whether Democratic nominee Joe Biden states his position on court-packing. The election is about one thing: a referendum on the dangerous presidency of Donald Trump. No wonder Republicans are so desperate to change the subject.”

“Republicans stole one seat when they refused to let President Barack Obama fill a vacancy created nine months before the 2016 election,” she wrote. “Now they are poised to steal another, rushing through President Trump’s nominee with Election Day less than a month away… Spare me the pieties about the sanctity of the Constitution, which, by the way, says nothing about the size of the court. A president who disdains rulings by ‘Obama judges’ and calls on his attorney general to prosecute his predecessor and his current opponent does not get to talk about separation of powers or cherishing the court. A presidential ticket that cannot bring itself to answer the simple question of whether it would respect the election results and engage in a peaceful transfer of power does not get to accuse the other side of seeking to undermine the rule of law.”

In The New York Times, Jamelle Bouie argued that there are “several straightforward, nonpartisan reasons for increasing the entire federal judiciary and adding additional Supreme Court justices.” Bouie pointed to federal district judges who have said publicly that they can no longer handle the caseload they have, noting that the U.S. population has grown from 249 million to over 330 million in the 30 years since the federal district court judges were added. But he sees a case for expanding the Supreme Court, too.

“There’s an obvious concern here — tit-for-tat,” he said. “What is to stop a future Republican majority from expanding — or shrinking — the courts in turn? The answer is nothing. And I’m not sure there should be. If Republicans win the White House and control of Congress, then they should have the right to govern, and if governing means changing the composition of the court, they should have the right to do so…

“It is also not clear that an 11- or 17- or even 27-member Supreme Court is necessarily a bad thing,” he said. “With more members, individual confirmation battles would be less heated and consequential. And tied even tighter to ordinary politics, the court might be more circumspect about striking down laws by duly elected lawmakers. The promise of tit-for-tat may actually be the thing that lowers the temperature of court battles, which might make it possible for both sides to find a new equilibrium.”

My take.

I’ve already touched on this a bit, but since Biden and Harris have kept it in the news I will refer back to my previous writing now. First, as I said last week, this is one of the most bizarre and illogical self-owns in politics that I’ve seen in a while. I think Biden and Harris are both making a huge mistake by not answering the question. As I’ve argued, I see little to no chance Democrats attempt to pack the court, and especially not with Joe Biden as president. Biden has spent his entire career working across the aisle, and he’s far too committed to unifying the country to take such an extreme step as president. It would just be a reversal of nearly 50 years of his time in public office, and I don’t see it happening (these odds may change, of course, if Republicans totally obstruct his agenda in the first two years of a Biden presidency).

Last year, he basically said as much: “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.” There’s been no evidence his position has changed. He’s simply stopped answering the question because he knows Democrats in the Senate are using it as a threat and he doesn’t want to upset the far-left base of the party. But even if he wanted to, which he doesn’t, it would not be easy. First, he has to win the election. Then Democrats would have to win the Senate majority in November, then blow up the Senate filibuster rule, then find 50 senators willing to pack the court — none of that is going to be easy.

Speaking of the filibuster, it is ironic to see Republicans hem and haw about the prospect of Senate Democrats and their “extremism” to abolish it and pack the court. For one, President Donald Trump has repeatedly and enthusiastically called to abolish the filibuster in order to force through Republican legislation. That’s the same filibuster that would stop Democrats from packing the court. Also, in 2016, Senate Republicans were openly floating the idea of not confirming any Hillary Clinton Supreme Court justices if she won, for all four to eight years of her presidency, which would amount to “court shrinking” instead of court packing (they were willing to keep the number of justices at eight or even seven). So court packing is a breach of norms but court shrinking isn’t? Huh. There’s a lot of pearl-clutching on the right about Joe Biden potentially doing things on par with what Donald Trump and Senate Republicans have openly called for already.

At the same time, I disagree with both Bouie and the other progressives who advocate for expanding the Supreme Court. Bouie is right that more federal judges are needed across the country, and I do support that kind of expansion.

But adding justices to the Supreme Court would completely destroy our trust in one of the last government institutions Americans still have faith in. And while he glosses over the tit for tat nature of an always-changing Supreme Court, I believe the repercussions would be disastrous. With all its stability now, the court still upends American life regularly by striking down far-reaching legislation. We’re likely to see another example soon with the Affordable Care Act. The prospect of that happening every time the Senate majority changes is terrifying to me, and in all likelihood would lead to less qualified judges and more ideologues sitting on the highest court in the land.

Biden knows he isn’t going to push to pack the court. So do Harris and the Senate Democrats. So far, they’re losing the media narrative on this issue and it's taking oxygen from all the other things — like COVID-19, the economy, health care and restoring normalcy — that they’re winning on. The wise move would be to simply answer the question honestly and move on.

Your questions, answered.

Q: What percentage of people who support Trump are actually right-wing extremists, who support or are a part of these groups (like the Proud Boys). Is it all 40% of the Trump supporters? Or much less?

— Conrad, Berlin, Germany

Tangle: The short answer is much, much less. The longer answer is that it’s not simple to decipher, but I don’t think it’s anywhere near 40%.

First off, there’s the struggle to classify any group as “extremist” if it represents 40% of the national population. In other words, you’re asking if 40% of the country who supports Trump are all right-wing extremists, which is — in a way — mutually exclusive. If nearly half the country holds a certain view, it’s tough to call that view extreme.

More specifically, though, I generally see the bulk of Trump’s support coming down to three major groups that all overlap, none of which has much to do with a group like Proud Boys.

One of the groups is 20% or so of the country, and about half of his support, who view him as pretty much infallible. These are Trump parading, Trump flag flying, Trump fanboy folks who see his presidency as totally revolutionary, who are completely fed up with politics and the government more generally, and who see a president who they think has largely kept his promises. These voters also tend to care deeply about “preserving” America and reducing immigration. Trump is trying to build a wall, he’s reducing immigration, he had a booming economy, and he’s playing strongman on the global stage. All of these are home runs for them.

The second group is the more business-oriented, working-class group. There is definitely some overlap here, but these are people who are really single or dual-issue voters. They care about the status of the companies or businesses they own and run, they care about the stock market and their retirement funds, and they care about their take-home wages. It’s all economics, and for many of them the Trump presidency was a resounding success, pre-COVID. Oftentimes, these are also the people who view the left very skeptically — some of them were Obama voters who now feel that the left has gone too far. They may also feel strongly about trans issues or view Black Lives Matter as “radical.”

The third group is the pro-life, religious cohort. These voters are as close as possible to single-issue as there are, and to them it’s pretty self-explanatory. Trump is more pro-life than Biden. These voters also view the left as having animus toward religions and Christians or Catholics more specifically.

Given the crossover between these groups, it’s tough to pinpoint what percentage each group makes up. Many of them also contain voters who have “racial resentment,” as David Shor puts it. Some call it racism, but political scientists classify it more as voters who believe racial issues are overblown and often feel their race is treated worse because of attempts at abolishing racism. For instance, just 9% of Trump voters believe it is harder to be Black than White in America. Are the 91% of Trump voters who don’t feel this way extreme? I’m sure many liberals would say so.

Perhaps the best measure of “extreme” is a willingness to commit political violence. As I recently covered in Tangle, the numbers around that are alarming in today’s America — but that goes for both sides. “36 percent of Republicans and 33 percent of Democrats said it is at least ‘a little’ justified for their side ‘to use violence in advancing political goals’ —up from 30 percent of both Republicans and Democrats in June,” according to Politico. A follow-up note on that story indicates the jump over the last few years isn’t as big as the data initially suggested, so I’m not at all clear on how much of that is tied to Trump.

Much as the country often obsesses over Antifa or looters on the left, I think there is an over-emphasis on groups like Proud Boys or QAnon that are actually fairly small, unimportant, and whose supporters are not as loyal as many people think (that being said, there are no “Antifa candidates” running for office and QAnon’s reach and influence is growing at an alarming rate).

The strongest case for Trump extremism is how he has moved the needle on issues. The “Overton Window” is often a good way to dictate what is acceptable, and in that sense, I think you could certainly make the case that a substantial proportion of Trump’s supporters would be “extreme” compared to 10 years ago. But, again, quantifying that feels almost impossible. In 2016, more than half of all Americans supported Trump’s ban on Muslim immigrants. That, to me, felt like a totally radical, disgusting position, and then I saw the majority of my country embrace it in polls.

There were other indicators of what I’d deem extreme in 2015, too. Polling showed that more than 30% of all Trump supporters viewed Black Americans as less intelligent than white Americans. That, too, strikes me as a radical (and clearly racist) view. But 22.5% of all respondents held it, and more than 20% of Clinton voters did, too. So is one in five extreme? Are Clinton voters extreme for holding this view, too? Again, it’s tough to quantify because it is kind of in the eye of the beholder. My answer would be yes: this is a good argument that about 30% of Trump voters are extreme. But then that logic goes for one in five Clinton voters, too.

Ultimately, I think Trump voters are far more complex than liberals give them credit for. Their support for Trump is often a confluence of several issues, and given Trump’s popularity on the whole it seems difficult to decide which part of his views are extreme and which aren’t. At the same time, I think “racial resentment” plays a much bigger role in support for Trump than many Trump voters are willing to admit. And I do believe holding racial animosity toward other Americans makes you an extremist in 2020.

So it really depends on the threshold for extreme: if the standard is holding Proud Boys-adjacent views — guys who are arming themselves to the teeth to incite a second Civil War if Trump loses — I think the number is much lower. If the threshold is wanting to ban Muslims from entering the U.S. or thinking African-Americans are inherently less intelligent than white people, then the percentage goes up quite a bit.

Reminder: You can ask a question, all you have to do is reply to this email and write in.

A story that matters.

States are struggling to avoid fraudsters stealing billions of dollars from unemployment relief programs, according to Politico. Criminal networks have been getting their hands on federal pandemic unemployment aid, and the antiquated state systems meant to keep them out seem to be failing at every turn. “Using huge databases of stolen personal information, cybercriminals based everywhere from Nigeria to London have pocketed an estimated $8 billion meant for people forced out of work due to the coronavirus so far, the Labor Department's inspector general told states last month. The IG predicts that $26 billion in the federal aid programs alone eventually could be lost to fraud.”


  • 1,349. The number of people who responded to the Tangle poll last week, the most in Tangle history.
  • 79%. The percentage of respondents who said they watched the first presidential debate.
  • 71.4%. The percentage of respondents who said they watched the vice presidential debate.
  • 45%. The percentage of respondents who said their impression of President Trump “declined” after the first presidential debate.
  • 8.1%. The percentage of respondents who said their impression of Joe Biden “declined” after the first presidential debate.
  • 32.3%. The percentage of respondents who said their impression of Kamala Harris “improved” after the vice presidential debate.
  • 17.8%. The percentage of respondents who said their impression of Mike Pence “improved” after the vice presidential debate.
  • 2.9%. The percentage of Tangle readers who said they were not planning to vote in the 2020 election.*
  • 1.2%. The percentage of Tangle readers who said they were undecided about whether to vote in the 2020 election.*
  • 14.7%. The percentage of Tangle readers who said they had already voted in the 2020 election.
  • 66.5%. The percentage of Tangle readers who said they are planning to vote early or by mail in the 2020 election.
  • 38%. The percentage of Tangle readers who said COVID-19 was their #1 issue in the 2020 election, the highest of any option in the poll.
*Hundreds of Tangle readers reside outside the United States and are not American citizens, and I forgot to include an option for “N/A” if they were not eligible to vote in the 2020 election. So this could be skewing the results. I regret the error.


On Friday, paying subscribers to Tangle got a deep dive on voter suppression: its history, how it happens, and the arguments that it’s not as big of a deal as some people say. One reader told me it was “worthy of the bloggers equivalent of a Pulitzer” (I’ll take it). You can subscribe and read that Friday edition by clicking here.

Have a nice day.

Just 10 rivers are responsible for about 90% of all the plastic in the world’s oceans, which makes this project from Dutch entrepreneur Boyan Slat all the more important. Slat is on a mission to end ocean plastic, and his organization The Ocean Cleanup has already successfully begun cleaning pollution from the Great Pacific Garbage Patch. Now, it is launching floating trash collectors called interceptors in the rivers that are most responsible for ocean pollution. The solar-powered, autonomous systems “use the rivers' currents to guide the trash onto conveyor belts that carry the waste to awaiting bins,” CNN reports.


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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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