Court-Packing and Democratic Context

Joshua Braver

University of Wisconsin

Politics is full of tough choices. Tom Daly’s remarkable and thought-provoking article acknowledges that there are no easy answers when deciding whether to pack an apex court, but he seeks to relieve some of the burden by providing guidance. Daly provides five “dimensions” decision-makers should track when confronted with the choice of whether to pack the court.  

Perhaps the most important of the five dimensions is the democratic context – “assessing court-packing against the … democratic trajectory of the state.”  In an authoritarian state or a solidified democracy, court-packing is highly unlikely to be legitimate.  The real work of the Daly’s five dimensions is to open up the possibility that court-packing might be necessary when the state is either an authoritarian one transitioning to democracy or a democracy backsliding into authoritarianism.  

My worry is that the centrality of the first dimension of democratic context undermines Daly’s analysis in two ways.   First, in the context of democratic backsliding, the dimensions are either indeterminate or overdetermined.  The result is that Daly’s criteria may effectively exclude court-packing in a democratic context.  Second, if democratic context is as central as I believe, then it undermines the ability to compare the long-standing liberal democratic system of the United States to countries like Turkey and Argentina that are transitioning away from authoritarianism.  My critiques are strengthened by the fact that the article does not discuss or cite any example of “good” court-packing in a democratic context.         

Indeterminate and Overdetermined

Daly’s four criteria do not provide sufficient guidance for deciding whether to pack a court in a backsliding democracy and may effectively rule it out. Some dimensions are indeterminate in the sense that they neither cut for or against court-packing.  The remaining ones are overdetermined because in the context of democratic backsliding, they are likely to be arrayed against court-packing.    

Daly’s first dimension of the democratic context places a higher burden on court-packing in a backsliding democracy. Daly argues that court-packing may be necessary when transitioning from democracy to authoritarianism because in that case “a lesser fidelity to ordinarily cardinal precepts such as consistency and predictability in the law can be tolerated.”  However, in a democracy the rule of law is an important value to protect, and democratic means might be sufficient to staunch backsliding.    

If court-packing is legitimate in a democracy, then the four other dimensions are doing the normative legwork.  But some will often fail to provide clear answers.  In the second dimension of articulated purpose, for example, Daly states that politicians should clearly state their reasons for packing with the hope that such articulations may clarify that this is a one-shot deal.  Whilst an important insight, I am skeptical that such statements from politicians will be effective in a polarized environment.  Even more importantly, that criterion tells us how politicians should act if they decide to pack the court, but it gives little insight into when court-packing is appropriate in the first place.    

Daly’s third criterion is whether a different reform can achieve the same result.  But there will always be trade-offs between different tactics to tame a Supreme Court.  As I have written in my article on the history of court-packing in the United States, “court-curbing” measures like jurisdiction-stripping or narrowly interpreting decisions are reversible, perhaps lessening the dangers of a tit-for-tat spiral.  Furthermore, while packing infiltrates and transforms the court, these measures attack the court from the outside, checking the court and causing it to retreat. It curbs rather than the colonizes the court.  That means they may be more likely than packing to leave the court’s legitimacy bruised but not broken.   

The trade-off is that these less radical “curbing” measures are less potent than court-packing.  In the United States, for example, the opportunity for packing is rare as it requires unified government: that is, one party possessing the presidency and majorities in both Houses of Congress.  An authoritarian court can then bide its time until the next election, at most two years away, to begin ruling in problematic ways.  Since less radical policies are always available, but since such policies almost always come with costs, the criterion of reform options is indeterminate.  

The remaining two criteria –  repetition risk and an open, pluralistic and participatory reform process – have the opposite problem because they overdetermine the outcome; in democracies, they will almost always weigh against court-packing. In the context of democratic backsliding, the parties are often highly polarized with each viewing the other as an existential threat. In that context, no matter the articulated purpose, the dimension of “repetition risk” is high because the stakes of losing the Supreme Court are immense.  

So too is an open and pluralistic process unlikely in a democracy backsliding into authoritarianism.  After all, the descent into authoritarianism is usually led by a populist party.  If small ‘d’ democrats need to pack the court to stop an authoritarian party, how can they reach a bi-partisan agreement?  In the United States for example, everyone knew that the Supreme Court Commission was highly unlikely to recommend court-packing because it included Republicans.  Previous transformational changes in the constitutional system have most often been led by a transformative president who centralizes power in their person to defeat resistance, most notably with Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt.  

For these reasons, I think it revealing that all of Daly’s examples of “good” court-packing are part of a transition away from authoritarianism.  There seem to be no “good” examples of court-packing in a democratic context.  

Cross-Country Comparisons

The centrality of the dimension of democratic context undermines the possibility of cross-country comparisons.  Daly argues that the five dimensions allow for “space-travel” or comparison across countries allowing participants in the United States court-packing debate to “draw key lessons” from court-packing in Turkey and Argentina.  In the latter two countries, good court-packing was part of a transition to democracy or occurred shortly after it.  The United States has the longest-lasting liberal democratic constitution in effect today.  

If I’m right that democratic context is the most significant dimension, then the comparison between countries is severely hampered.  Indeed, I and Gabriel Negretto both place a heavy emphasis on a common democratic context when justifying comparisons in our separate work on constitution-making.  Since the other four criteria are either indeterminate or over-determinate, it’s hard to draw lessons from countries that have and have had dramatically different governments.  

* * *

Neither history nor cross-country comparison can offer an escape from tough political choices.  Previously, I have argued that United  States pro-packing proponents incorrectly drew from history the lesson that court-packing is routine and harmless.  Daly is more sophisticated in trying to ask when court-packing is appropriate, and he turns away from history to cross-country comparisons.  But I’m unconvinced that the five dimensions can offer the answers for the United States that history has failed to provide.  

At this juncture, we may have to muddle through when deciding whether to pack a apex court.  Court-packing will be dangerous, but sometimes worth the risk. Judgment will be necessary to think through the choice. Nonetheless Daly’s article is perhaps the first and most ambitious attempt to lay out criteria for when and how to pack a court.  It may not relieve us of the burden of political judgment, but it may mitigate it. For that reason and for its many insights, it is an excellent and important contribution to an ongoing and crucial debate.  

Joshua Braver is Assistant Professor at the University of Wisconsin Law School 

Suggested Citation: Joshua Braver, ‘Democratic Context’ IACL-AIDC Blog (31 March 2022) https://blog-iacl-aidc.org/can-good-courtpacking-repair-democracy/2022/3/31/court-packing-and-democratic-context.