June 3, 2019

Candidate for President of the United States:

We the undersigned write to congratulate you on your candidacy for president of the United States. Our nation’s current political system faces significant challenges, including the devolution of many democratic norms. In this environment, numerous legislative and political reforms have been proposed, including changes to the very structure of the U.S. Supreme Court.

As you continue with your campaign and further develop your political platform, we respectfully request you reject the calls to add seats to the Supreme Court legislatively, a proposal popularly known as “court packing.”

Although we reject court packing, we understand the political frustrations propelling its attraction. Two of the last three presidents were originally sworn into office without winning the popular vote. Gerrymandering efforts in numerous state legislatures have led to disproportionately partisan districts. Supreme Court vacancies have arisen more frequently under Republican administrations than Democratic administrations since the 1960s. These factors, paired with the increased politicization of Senate confirmation hearings, have increased skepticism about the Court’s independent role and whether its composition reflects that of the country as a whole. These foundationally political problems are being met with political solutions—ones that address such frustrations but do not ensure the long-term health of America’s foremost judicial institution.

The ‘solution’ offered by court packing does not overcome its many pitfalls. In response to this proposal, we ask you to consider the following concerns:

The federal judiciary has maintained its reputation due in part to its long-standing structure. Since its founding, federal judges have served with life tenure, and the Supreme Court has consisted of one chief justice and eight associate justices for 150 years. Breaking this precedent by amending the Supreme Court’s composition will usher in a new judicial arms race, where every change in administration or congressional majority will consider it proper to change the number of justices. The structural stability of the institution will be lost.

Regarding its ideological stability, “packing” the Court will not balance it. If this were the case, advocates would call for far more modest proposals than the addition of three or more judicial seats to a modest body. Instead, the implementation of modern court packing proposals will greatly damage the Supreme Court’s public legitimacy, an outcome that will last for generations.

Even though proponents laud its long-term benefits, in the short term, a “packed” Court will be inextricably tied to the Congress that created it and to the future party leaders that will change it again. The Court will be featured even more on the campaign trail, and its jurisprudence will forever be tied to partisan platforms. This change will lead the Court to lose its independence and may well tempt justices to make decisions knowing that the other two branches could retaliate either by expanding or contracting its membership. Similarly, we fear the Court’s docket will become akin to a political agenda, the outcomes of which could drastically shift in as short a time as one election cycle, undermining public trust and respect for the law. Legal precedent could become outweighed by political motives.

Additionally, the institutional damage caused by packing the court would not be limited to the judiciary. Already, the Senate’s process for confirming a president’s judicial nominees is devolving into a political—and increasingly partisan—spectacle, resulting in both inadequate evaluations of nominees and confirmations cemented in partisanship. If our nation were to adopt a judicial structure in which a justice’s appointment and tenure were more directly political, the confirmation process would become an internecine war, fundamentally altering one of the Senate’s greatest constitutional responsibilities and one of our nation’s most trusted tools of check and balance.

Today’s skepticism of the Court and the politically motivated proposals to “fix” or “balance” America’s judiciary have put the nation’s full judicial body on defense. The conversations have cast a politically powered spotlight on all actions of the Court, further degrading the public’s confidence in one of our nation’s most stable institutions. As you further develop your political platform, we the undersigned ask that in your dedication to preserve one of America’s greatest, most stable and trusted institutions, you avoid the temptation to appease political frustrations by degrading democratic institutions. To this end, we humbly encourage you to depoliticize the courts and ensure their long-term stability.

Sincerely,

The R Street Institute

Republicans for the Rule of Law

Stand Up Republic

Richard N. Lorenc, Executive Vice President, Foundation for Economic Education

Ilya Somin, Professor of Law, George Mason University

Jason Pye, Vice President of Legislative Affairs, FreedomWorks