Court-Packing in Comparative Perspective

In his new piece, “‘Good’ Court-Packing? The Paradoxes of Democratic Restoration in Contexts of Democratic Decay” (forthcoming, German Law Journal 2022), Tom Daly provides an illuminating account of “court-packing” in a comparative context. He sets out numerous examples of attempts to pack courts worldwide, providing a particularly detailed account of court-packing practices in Turkey and Argentina.

There is clear value to his detailed comparison: it helps ground Daly’s claim that the political legitimacy of court-packing lies on a continuum, and depends on the relevant legal and political context as well as the justification for court-packing efforts. This also provides the foundation for the article’s core conceptual claim: that in some circumstances court-packing can be justified as consistent with commitments to constitutional democracy and the rule of law, and that whether this is true depends on five factors: the: (i) democratic context; (ii) articulated reform purpose; (iii) reform options; (iv) reform process; and (v) repetition risk.

This list is itself extremely helpful. The valence of packing a court will depend upon whether such packing is undertaken by a democratic, competitive authoritarian or authoritarian regime. The stated purpose of reform also matters – reforms that aim to restore democracy, or democratic responsiveness, will have a far greater claim to legitimacy than those that aim to advance the interests of the current political majority.

The range of options or alternatives to court-packing is likewise important: as David Kosař and Katarina Šipulová note, there are a range of options for recalibrating the relationship between judicial responsiveness and independence, including judicial term limits, democratically controlled judicial appointment processes, formal mechanisms for legislative override, and limits on courts’ jurisdiction (see also my work with David Landau). Many of these approaches will also be more consistent with the rule of law, and constitutional norms and conventions, than court-packing. It therefore matters whether these options have been considered, and exhausted, before court-packing is considered as an option.

Perhaps the most important consideration from a democratic perspective, however, is the risk of repetition associated with court-packing – and whether it is likely to lead to a cycle of tit-for-tat attacks on courts and judicial independence. A cycle of this kind risks completely undermining actual norms of judicial independence, and the perception of courts as trusted, independent institutions. It can also lead to an increasingly large and unwieldy court – unable to sit en banc, and thus provide clear and consistent jurisprudential guidance (on constitutional norms generally, see Ashraf Ahmed).

One suggestion sometimes made, in this context, is that justifications for court-packing should expressly include a form of “sui generis clause” – or statement that the increase in court size is meant to be a one-off act, justified by exceptional circumstances, and not designed to contribute to any broader norm or convention in favour of the legitimacy of court-packing. But, as Daly notes, these kinds of statements have limited value: they are “cheap talk”, and unlikely to be honoured by later decision-makers wanting to pursue the same course.

Daly also proposes an alternative, more process-focused way of deterring a tit-for-tat cycle of repetition: in ways that echo Bruce Ackerman’s theory of “constitutional moments” (see also here), he proposes that court-packing should be linked to heightened forms of popular mobilization and deliberation around the need for constitutional change. And he connects this to the justifications offered for court-packing: court-packing will be presumptively legitimate, according to Daly, where it is justified in democratic terms and supported by heightened democratic deliberation, and presumptively illegitimate where it is accompanied by strategic justifications and an elite process of adoption.

Again, this is a helpful conceptual contribution: as Tom Ginsburg notes, constitutions can be seen as offering elites valuable forms of “political insurance”. And this can both help explain and justify constitutional constraints in some circumstances. But, as Ginsburg and I have noted, insurance of this kind can also take various forms: personal, political and policy-based insurance. And there are much stronger democratic grounds for protecting policy-based as opposed to personal forms of insurance: one has broader democratic majoritarian roots, and the other a far more limited elite interest-based justification. Court-packing that aims to advance specific policy or ideological commitments, therefore, can be seen as presumptively more legitimate than efforts made to advance the personal interests of existing elites. The latter approach may include measures such as the judicial conferral of immunity to the president or prime minister, or interpreting constitutional term limits to allow the president to remain in office.

Ultimately, however, I remain unconvinced that any of these principles can effectively guard against the danger of abuse of court-packing as a constitutional tactic. As Daly himself notes, court-packing can be used in service of both democratic and anti-democratic ends. And the worry, for those committed to protecting and promoting democracy, is that once unleashed as a legitimate tool of constitutional “dialogue” it will become a far more effective weapon in the hands of would-be authoritarians than aspiring democrats.

Why? Because court-packing is a tool inherently susceptible to abuse. As Landau and I note in our recent book Abusive Constitutional Borrowing, both the language of democracy enhancement, and the participatory processes Daly proposes as a means of cashing out that claim, are themselves open to abuse: they can be used superficially or selectively by would-be authoritarians as a form of pretextual justification for anti-democratic efforts to undermine judicial independence.

This is one reason I have cautioned against court-packing as a tool for recalibrating the composition of the US Supreme Court. Daly is more optimistic about the prospects for “good” court-packing in the US. But I worry that this underestimates both the pervasiveness of partisan polarization and tit-for-tat dynamics in American politics and the danger of abusive court-packing by a future Republican White House.

Court-packing by FDR and Biden is one thing. Court-packing by a president willing to condone attacks on the Capitol, à la January 6, is quite another. And lest you think that Trump would hesitate to use or abuse court-packing as a purportedly democratic strategy, just think about his justification for the January 6 riots: he claimed they were about protecting electoral integrity and democracy itself.

So, unlike Daly, I am not sure that there are or can be good court-packing practices in the US. But reading Daly’s work has helped me understand how and why I think that, and why it might be different elsewhere, or at different historical moments.

Rosalind Dixon is a Professor of Law and Director of the Gilbert + Tobin Centre of Public Law at UNSW Sydney

Suggested Citation: Rosalind Dixon, ‘Court-Packing in Comparative Perspective’ IACL-AIDC Blog (22 March 2022) https://blog-iacl-aidc.org/can-good-courtpacking-repair-democracy/2022/3/22/court-packing-in-comparative-perspective.