R Street Heads Up Coalition Letter to 2020 Presidential Hopefuls on Court Packing
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
