“Good” Court-Packing Interrogated

Aslı Bâli

UCLA

Tom Daly’s provocative essay asks how we might be able to distinguish court-packing undertaken for pro-democratic purposes—as an act of democratic “restoration” to borrow his formula—from anti-democratic forms of court-packing that threaten the independence of the judiciary. This is an important and timely project precisely because abusive court-packing has recently become a high-profile element of what comparativists describe as the authoritarian playbook. Yet judicial reforms are sometimes needed, especially in democratizing transitions. Identifying criteria for distinguishing “good” from bad court-packing is, for this reason, both a formidable and urgent task. Daly takes on this challenge with alacrity, proposing some very useful metrics. But, in the end, the resulting five-dimensional framework he proposes remains somewhat unsatisfactory. 

To arrive at his framework, Daly provides a thick, qualitative account of two case studies to examine what we might learn from debates about court-packing in contexts of democratic crisis. The turn to comparative law to derive empirically-grounded theoretical lessons about institutional design strategies is laudable, all the more so when drawing on cases from the Global South. Daly does a terrific job of laying out the Argentine and Turkish cases and drawing on them to develop criteria for considering the democratic legitimacy of proposed reforms. He identifies an array of factors that are examined exhaustively in the other contributions to this symposium—to put it as concisely as possible, they encompass the democratic context in which reforms are proposed, whether more modest reform options are available, the articulated purpose of the reforms, the degree to which the reform process is open and participatory, and an assessment of the risk that reforms might trigger a cycle of further court-packing.

The complexity and indeterminacy of the different dimensions of Daly’s proposed framework are telling. Each of the dimensions would be better described as a spectrum of possible circumstances a country might face. Defining the democratic context under which reforms are being undertaken, or the available reform options, or how best to characterize the reform process, are all nuanced, highly contextual and ultimately contested determinations. Let’s take arguably the most important of these dimensions, the democratic context. Daly views the current debate about court-packing in the U.S. as taking place in a “transitional context” in response to democratic decay. Making ex ante determinations about the legitimacy of proposed reforms depends on whether one agrees with this characterization. 

Americans who would agree with Daly’s take on the current U.S. democratic trajectory may already support proposals for Supreme Court reform. For those who view the election and presidency of Donald Trump as evidence of democratic erosion, the constitutional hardball tactics by Republican senators that enabled Trump to make three appointments to the Supreme Court are part of a story of democratic decay. On this account, reforms to the court may, indeed, constitute a form of “democratic restoration”. But, to those who view the Trump presidency as an affirmation of legitimate democratic alternation of power in the U.S., his judicial appointments may be seen as the ordinary prerogative of a president able to secure the support of a majority in the Senate. From this perspective, debates about judicial reform might seem to be the work of anti-democratic elites subverting the will of the majority in the name of their own ideological preferences. 

In other words, the framework for considering the legitimacy of proposed reforms itself depends on highly contested interpretations of the democratic context. But the need for criteria to distinguish legitimate from abusive reforms arises in those cases where interpretations of the democratic context are contested. In the U.S., polarization about this question makes consensus on the application of Daly’s five-dimensional framework unlikely, undermining its utility. The eye-of-the-beholder quality of assessments of democratic context replicate the precise difficulty Daly’s framework was meant to resolve. 

That said, I agree with Daly’s insight that in principle there will clearly be circumstances where changes to the design of judicial appointments and promotions processes can be pro-democratic. The most obvious instance is during post-authoritarian democratizing transitions, as Kosař and Šipulová also note. In these contexts, the prior regime may have appointed individuals to the judiciary based on their willingness to be complicit in authoritarian abuses. Courts filled with judges selected for their anti-democratic commitments or presiding over a system that undermined the rule of law may represent a significant obstacle to democratization. Indeed, recent work on abusive judicial review underscores the way courts can sometimes be captured by authoritarians to reinforce their rule. Note that in this context, the prior regime may not have “packed” the court in the sense of engaging in extraordinary judicial appointments or altering the size of apex courts. Depending on the duration of the period of authoritarian rule, the ordinary functioning of a system of judicial appointments and promotions might produce courts stacked with ancien regime loyalists opposed to democratic reforms. In these contexts, the need to ensure an independent judiciary supportive of the rule of law might require extraordinary measures that alter the composition of the judicial branch as a whole—or at least the high courts—as part of a democratizing transition. The Council of Europe’s Venice Commission, as one example, developed a broad advisory function concerning judicial reforms during the post-Soviet transitions in Eastern Europe for precisely this reason. 

But if we can agree in principle that there are occasions that call for judicial reforms, the shift to making contextual determinations of reform legitimacy in particular instances remains tricky. Daly’s proposed framework for identifying when such reforms serve pro-democratic ends is most useful during a post-authoritarian transition. Here, the starting point is a judicial branch likely implicated in authoritarian practices, which alters the risk-benefit calculus of reforms designed to change the composition of the judiciary. As I have already suggested, the ambiguities that invariably attend to interpretations of the purposes and processes of reform may be irresolvable, but if there is some clear consensus about the democratic context—as is often the case in a post-authoritarian transition—that is at least helpful. 

By contrast, Ros Dixon’s worry that court-packing is inherently susceptible to abuse is much more troubling in cases, like the U.S., where the democratic context is fundamentally contested and reforms are about democratic restoration rather than post-authoritarian transition. If the judicial appointments and promotions processes were established under democratic conditions, that may constitute a good reason to maintain their relatively stability even in instances of democratic backsliding. The Federalist Society’s long-term strategy of shifting the ideological makeup of the judiciary and the Republican Party’s constitutional hardball may all be troubling, but they are well within the bounds of the U.S. constitutional order. Moreover, these strategies point to problems in the constitutional order that lay beyond the judiciary—dysfunction in the party system, anti-democratic features of bicameral design and electoral rules—and cannot be solved by simply altering the makeup of the Supreme Court. As Ryan Doerfler and Sam Moyn have argued, proposals for court-packing are as likely to magnify as mitigate democratic erosion.

Even if we set aside cases of democratic decay and focus exclusively on cases of post-authoritarian transition, Daly’s five-dimensional framework may still leave open many interpretive challenges in determining whether reforms are legitimate ex ante. As Josh Braver argues, for instance, pro-democratic reformers may not be able to adopt a fully participatory and open process in a highly polarized context. On the one hand, needed reforms might be blocked by an inclusive process that produces stalemate. On the other hand, if reforms are undertaken in a less than fully inclusive manner due to the presence of autocratic loyalists, the process problems would undermine their legitimacy, regardless of their democratic character.

This dilemma is illustrated by the Turkish case study that Daly examines. To summarize his analysis, Daly finds that Turkey presents an instance where expansion of the constitutional court could have been justified as part of a transition to a liberal-democratic system that established appropriate checks and balances between the branches of government. In practice, however, the legitimacy of the reforms was compromised by their manner and context. He notes that the reforms themselves were more nuanced than a straightforward capture of the constitutional court and, despite process failures, it was difficult to offer a contemporaneous assessment of their legitimacy. In hindsight he concludes that the reforms had anti-democratic effects. There is no question that Turkey has taken a drastically anti-democratic turn in the last decade, but whether and how the constitutional amendments of 2010 contributed to that outcome is less clear.

The contemporaneous debates about the amendment package saw pro-democratic reformers in the country on both sides of the issue. These debates reflected wider divisions over how best to interpret the democratic context. To many both within and outside of the country, the ruling party was at the time seen as committed to democracy and the pursuit of EU accession. The most controversial amendments were those related to judicial reforms, but at the time even those provisions won the support of the Venice Commission. Yet within Turkey there was also growing alarm that AKP leaders were at best accidental democrats—and that interest convergence between AKP constituents and liberals did not run deep enough to sustain a democratizing trajectory. In this context, contemporaneous analysis of the judicial reforms largely depended on one’s assessment of the democratic context and the intentions of the governing party. In the end, despite serious process concerns about putting a disparate package of constitutional amendments up for a single yes/no vote in a referendum, a liberal campaign adopted the slogan “Not Enough, but Yes” to encourage ambivalent non-AKP voters to support the amendments as a step towards reforming a constitution originally drafted under military rule.

As Daly notes, in hindsight it is easy to conclude that the critics of the government were right about the AKP’s anti-democratic trajectory. But later assaults on the independence of the judiciary did not depend on the 2010 constitutional amendments. Instead, the government resorted to extra-constitutional measures and emergency decrees to purge prosecutors and judges beginning in 2014. Later, a new set of constitutional amendments was passed in 2017 during a period of emergency rule, altering once more the number, tenure and selection criteria for constitutional judges. The independence of the Turkish judiciary has since been severely compromised and the rule of law damaged as a result of nakedly authoritarian court-packing. But it is less clear if those actions should be conflated with the reforms of 2010. At a minimum, whatever the party’s intentions in proposing the 2010 constitutional amendments, they evidently did not deliver control over the judiciary, hence the need for subsequent purges and further court-packing amendments. In other contexts, the risk of repetition with respect to court-packing usually reflects the worry that adversaries might re-pack courts once a precedent is set. The AKP is the anomalous example of a party that had to “re-pack” the courts after its own initial court-packing efforts left it facing an obstreperous judiciary.

In the end, the difficulty may lie with the original question Daly posed: “can ‘good’ court-packing be justified to repair democratic decay?” This dichotomous presentation of judicial reforms as either good or bad doesn’t comport with a complex multifactorial framework that defines a spectrum of considerations too ambiguous and indeterminate to be reduced to a binary result. There may be no exhaustive framework that can offer a definitive account of the ex ante legitimacy of judicial reforms in all cases. But defining the relevant spectrum of considerations and providing a democratic theory of what legitimate court-packing might require is an important service and reason enough to admire Daly’s significant contribution to comparative constitutional theory.

Aslı Bâli is Professor of Law at UCLA School of Law

Suggested Citation: Aslı Bâli, ‘“Good” Court-Packing Interrogated’ IACL-AIDC Blog (3 May 2022) https://blog-iacl-aidc.org/can-good-courtpacking-repair-democracy/2022/5/3/good-court-packing-interrogated.