The Ius ad Bellum and Ius in Bello of Court-Packing

David Kosař & Katarína Šipulová

Masaryk University

Tom Daly’s article “‘Good’ Court-Packing? The Paradoxes of Democratic Restoration in Contexts of Democratic Decay” brings a breath of fresh air to the extremely polarized and fragmented discussion on the legitimacy of court-packing. Noticing the reluctance of the US debate to engage in comparative analysis, Daly serves on a silver plate two rich case studies of Turkey and Argentina and offers lessons which US scholars should consider when theorizing about the enlargement of the US Supreme Court (hereinafter “SCOTUS”). It is the illuminating experience from Turkey and Argentina, in contrast with the US context, that prompts Daly to develop his core conceptual claim that the legitimacy of court packing lies on a continuum, depending on its consistency with the principles and requirements of constitutional democracy and rule of law. To evaluate the justification of court-packing he proposes to use five criteria: (1) the democratic context, (2) articulated reform purpose, (3) existence of alternative reform options, (4) quality of reform process, and (5) the repetition risks.

This analytical toolbox is clever as it attempts to capture both the normative justifications and democratic deliberative process as an inherent part of court-packing legitimacy. However, as with any analytical framework, the most important question is how it would fare if implemented in practice. As Mark Tushnet points out in his contribution to this Symposium, the downside of multifactorial analyses is that they are tricky to insert in constitutions, so they often remain retrospective tools for scholarly exercises. 

In what follows, we complement some of the concepts Daly uses in his toolbox and offer suggestions on how to transform the toolbox into a forward-looking mechanism. We also further problematize the reliance of the toolbox on the vague and easily stretched concept of democracy. 

First, the criterion of democratic context poses several challenges. Apart from cases of clear democratic transition, such as those after the fall of Berlin Wall, democratic restoration or democratic decay are typically difficult to identify and, moreover, they rely on a retrospective, context-dependent assessment. Even if we close our eyes to the dubious relationship of court-packing to the quality of democracy, the pronounced commitment of court-packing to democratization efforts will always be difficult to prove. To problematize the point even further, factoring in democratic context inevitably leads us to double standards. Is it feasible to think of legitimate court-packing only in democratic settings and eliminate the power of other leaders to, for example, increase the size of overloaded courts, even if the reform gains undisputable support across the political spectrum or attracts larger public appraisal? Similar double-standards are the fuel to Orbán-like illiberal politics. 

Second, we agree with Daly that an articulated purpose is an absolutely vital element of court-packing justification. Yet, the articulation itself is not enough. We have witnessed this repeatedly from FDR’s court-packing to the reduction of Polish and Hungarian judges’ retirement age: the purpose can only justify the court-packing if it is genuine and uncontested. The threshold of burden placed on political leaders will change with different types of court-packing justifications and aims. Court-packing employed to fight wide-spread corruption patterns undermining the whole judiciary (think of Albania) will most probably trigger different considerations than “mere” attempts to balance unrepresentative courts or to increase courts’ effectiveness. 

Third, the evaluation of alternative reform options is another essential step. However, the selected alternative options must be able to secure the aim sought to the same or at least similar degree. Otherwise, the alternative is not truly comparable to court-packing. Here, Daly’s optimism when evaluating the US context seems to be a little less warranted once we look abroad. Unlike in the specific US context, there are typically not many alternatives available in other countries, either because some strategies are already long in place (such as compulsory retirement ages, limited terms of office, etc.); or because of the strict legal constraints placed on judicial independence by supranational courts (ECtHR and CJEU, in particular) or because of limits imposed by domestic constitutions and legal cultures (such as forbearance of jurisdiction stripping, weak judicial review, random selection of Supreme Court judges from lower courts, etc.).  In many cases, the only alternative that remains is to layer the court-packing reform over time (such as the gradual increase in the size of the EU’s General Court) in a way which would not bring any power benefit to the current political establishment. Yet, in some cases, the delayed effect of court-packing might not be an acceptable option.

Fourth, Daly’s focus on the reform process is very promising. We actually think that, in tandem with genuine purpose, this might turn out to be the critical factor safeguarding against the risks of court-packing.  For Daly, a just democratic reform process rests on “the salience of the openness, pluralism, and length of the reform process”. Biden’s presidential committee serves here as an interesting example of such  deliberation, yet, on the other hand, also opens a set of questions prompting further elaboration. What is the benchmark for a sufficiently adequate reform process? The comparative experience allows us to generate quite concrete factors such as multi or bipartisan political support (instead of mere supermajorities which can be easily achieved by a single actor), supranational confirmation (particularly in polarized countries where agreement from the opposition is out of the question), involvement of (foreign) experts or foreign judges on the court-packing reform, or other examples of direct democracy and public support. The rigidity of conditions laid upon the reform process, once again, will most probably change with the gravity of the individual justifications standing behind the court-packing. 

Lastly, Daly is right that legitimate court-packing needs to be considered against its potential risks. The risk of cyclical repetition, drawing on the comparative experiences of Argentina and Venezuela for example, resonates among both critics and supporters of court-packing with an increasing urgency. Even in the US context, scholars argue that court-packing poses an unprecedented danger of spiraling and ballooning the SCOTUS’ size to as many as 23 justices within the next 50 years.  But repetition is not the sole risk associated with court-packing. As many critics stress, it can also easily lead to partisan politicization of the judiciary. Many commentators think that the polarization of the SCOTUS cannot get any worse. Well, it can. In other countries, for instance in Europe, the “polarization leap” could be even greater. Finally, the mere threat of court-packing might have a chilling effect on judges’ behavior, leading to a self-constrained approach and reluctance to decide politically salient cases, out of fear of retaliation. It is thus no wonder that many opponents of strong judicial review also internalize the pro-court-packing positions.

Despite the above-mentioned remarks, the analytical framework offered by Daly is an immensely important step in understanding the logic behind an assessment of the legitimacy of court-packing. In fact, the individual criteria that Daly uses actually push us to further theorize on the essence of court-packing legitimacy. We argue that there are two different dimensions of court-packing legitimacy, which need to be addressed independently. The first dimension addresses the ius ad bellum of court-packing – “the just cause”. This dimension roughly corresponds to what Daly identifies as the democratic context and reform purpose of court-packing.  Again, we welcome Daly’s suggestion that the transitional dimension of court-packing should be distinguished as a separate paradigm. This view is in line with the generally accepted higher discretion of transitional political elites, particularly in those regimes where courts participated in human rights violations or helped preserve the regime. What Ruti Teitel once famously addressed as a “transitional rule of law” creates a framework that can easily justify even significant court-packing interferences. On the other hand, as we pointed out above, democracy itself does not bring much clarity to the debate and the US example demonstrates this fact quite well. The lack of agreement on the content of democracy makes the use of “democratic decay” or “restoration” language an easy target for abuse (as Ros Dixon points out in her contribution to this Symposium). If we want to know how skillful populist leaders are in using democratic rhetoric, it suffices to remember that Orbán instigated his constitutional reform by stressing that Hungary was the only communist constitution unreformed after democratic transition; or that Kaczyński’s entré to court-packing was a media crusade against an already not particularly popular judiciary, painting the judges as a corrupt, undemocratic, privileged “caste”. 

These experiences bring us to the conclusion that perhaps the ius ad bellum dimension of court-packing legitimacy might follow more straight-forward and pragmatic goals, and simply outline acceptable justifications which are typically associated with examples of “good” court-packing. Their applicability will be conditioned by the ius in bello dimension, which informs us how to actually execute court-packing legitimately. Once you consider the court-packing justified, there needs to be a set of procedural safeguards and an assessment of the techniques used for court-packing against the backdrop of domestic constitutional and international norms. The fact that the survival of democracy is in danger does not mean you can do whatever you want and pack the court with no limits. Drawing on Daly’s reform process, deliberation about court-packing and an assessment of its alternatives should surely be among such conditions. Yet, the ius in bello assessment will need to engage with even more problematic aspects and carefully analyze the compatibility of any reform with court-packing effects within the existing supranational and constitutional norms in a given country.

The major limitation of Daly’s paper is the application of his analytical toolbox, derived from the Argentinian and Turkish experiences, to the US case. The US court-packing proposals arise from the unique combination of the key features of SCOTUS, namely (1) no compulsory retirement age of SCOTUS Justices; (2) no term limits; (3) strong judicial review; and (4) the unpredictable practice of strategic resignations. This unique combination significantly increases the attractiveness and potential political gains of court-packing. It also stretches Daly’s analytical toolbox too thin. There is no clear-cut agreement on the looming democratic decay or restoration caused by the polarization of SCOTUS Justices. Outlier cases simply make bad general policy. But that is a topic for blog posts by other contributors to this wonderful Symposium. 

* We are grateful to Jan Petrov for his suggestion to use a narrow analogy with international law concepts “ius ad bellum“ and i”us in bello“.

David Kosař is Associate Professor and Department head of Masaryk University’s Department of Constitutional Law and Political Science

Katarína Šipulová is Assistant Professor and Co-Director of the Judicial Studies Institute at Masaryk University

Suggested Citation: David Kosař and Katarína Šipulová, ‘The Ius ad Bellum and Ius in Bello of Court-Packing’ IALC-AIDC Blog (24 March 2022) https://blog-iacl-aidc.org/can-good-courtpacking-repair-democracy/2022/3/24/the-ius-ad-bellum-and-ius-in-bello-of-court-packing.