Can ‘Good’ Court-Packing be Justified to Repair Democratic Decay?

Tom Gerald Daly

University of Melbourne

Editors’ note: In light of our mission to create truly global conversations surrounding constitutional law topics, we are happy to continue the “Workshop My Paper Series” (WMPS). Launched in 2021, the WMPS is an initiative of the IACL Blog that seeks to bring together scholars throughout the world to critically engage with forthcoming and recently published scholarship in the field. In this WMPS we are excited to present Tom Daly’s  forthcoming article: ‘’Good’ Court-Packing? The Paradoxes of Democratic Restoration in Contexts of Democratic Decay’. 

Can court-packing be a legitimate measure to help repair the democratic system after a significant period of democratic decay? This is a central question for constitutional democrats in the US right now, and has serious implications for how we approach, and understand, repairs to remedy democratic decay worldwide. 

My sincere thanks to the IACL Blog for hosting this symposium on my paper ‘‘Good’ Court-Packing? The Paradoxes of Democratic Restoration in Contexts of Democratic Decay’. It is forthcoming in the German Law Journal and subject to revisions, but the text is available here in a new Working Paper series on Repairing Decayed Democracies also launching today, hosted by the global knowledge platform Democratic Decay & Renewal (DEM-DEC). Starting today and continuing for the coming weeks, this Blog symposium will feature responses to different dimensions of the paper by Mark Tushnet, Ros Dixon, David Kosař and Katarína Šipulová, Josh Braver, Oren Tamir, Aslı Bâli, and Rivka Weill. I am very grateful to each of them for engaging with this paper and offering such valuable commentary and critique. 

In this introduction I sketch the main argument in the paper and explain why the US court-packing debate on Supreme Court reform has much broader international implications. To date, the US debate – especially controversial arguments to break the norm against court-packing to repair the democratic system – has generally focused on historical precedents in the domestic system, with scant comparative analysis. However, the debate raises fundamental questions for comparative constitutional lawyers regarding the paradoxes of democratic restoration in contexts of democratic decay, framed here as a distinct category of constitutional transition. 

In the paper, I pursue a central argument that understanding such reparative reforms requires a novel comparative, methodological, and theoretical approach taking seriously the experiences of Global South states and constructing new analytical frameworks.

Calling for a significant shift in our methodological approach, I argue that: (i) the US debate can be understood as taking place in a ‘transitional’ context of (highly contested) democratic restoration in response to democratic decay; (ii) that the lack of instructive comparative experiences among the world’s long-established liberal democracies (e.g. the UK, Australia, Germany) requires us to explore the value of Global South experiences, including states that are not generally seen as comparators for the US; and (iii) that understanding reform to repair democratic decay as a distinctive form of constitutional transition – separate from both ‘ordinary’ constitutional reform and post-authoritarian democratic transition – requires us to re-examine, and connect, the many insights across four somewhat overlapping but siloed research fields: democratic decay, constitution-building, democratisation, and transitional justice. 

At the theoretical level, by identifying key issues and insights through case-studies of Turkey and Argentina, the paper seeks to provide a broader analytical framework for thinking through the legitimacy of reparative measures, focusing on five dimensions: (i) democratic context; (ii) articulated reform purpose; (iii) reform options; (iv) reform process; and (v) repetition risk. The aim here is not to present a rigid check-list for evaluating the legitimacy of contested reforms, but rather to foreground important dimensions of such reforms. None of this is to elide the very real differences between the US and states such as Argentina and Turkey. It is simply an argument that there are valuable insights to be gained from studying experiences in such states as well as the rich literature on transitional contexts. 

Applying this framework to the US I make the case that there can be democratic justifications for court-packing, but only if a range of baseline criteria are met, especially related to the interlinked factors of public justification and process. However, there are clearly no easy answers here, and time – namely, the potentially very narrow ‘window’ for reform – presents a serious obstacle to achieving a tailored reform process that can signal the exceptionality of such a measure and mitigate the risk of repetition. (Importantly, the paper was written before the Biden commission on Supreme Court reform issued its 288-page final report in December 2021. That report presents little more than a lengthy ‘pros and cons’ list, and no recommendations, and as such has been sharply criticised – although it must be noted that this reflects the commission’s terms of reference.) 

Importantly, the US is not alone in these struggles. The paradoxes and challenges of democratic restoration are already on the agenda in many other states that have suffered democratic decay, especially with the prospect of anti-democratic incumbents being ousted in forthcoming elections in states such as Hungary, Poland, Brazil, and Turkey (although this is very far from guaranteed). We may even tentatively speak of a new paradigm (or at least a potential mini-wave) of constitutional transition. 

These challenges also go far beyond court-packing, which is just one reparative measure among many. Contemporary questions of norm-breaking for the purposes of democratic restoration include the Hungarian opposition leadership’s talk of ‘regime change’ through a referendum to restore checks and balances, bypassing the amendment process in the Constitution imposed by the Fidesz government in 2011, which has been described as a “dangerous game” of “breaking legal continuity” by constitutional scholar Andras Jakab. They also include questions about direct democratic restoration in Poland – where the original democratic 1997 Constitution remains in place – through simply unwinding key measures, laws, and institutional transformations enacted by the sitting Law and Justice Party (PiS) government. This complexity also counters simplistic arguments concerning states such as Brazil for the replacement of the existing constitution or a shift from a presidential to a parliamentary system to address intensifying democratic crises, as proposed by Bruce Ackerman.

This paper started simply as an exercise for me, as an outsider to the US debate, to articulate issues to myself that seemed still inchoate in that debate. I have ended up doing this preliminary thinking publicly. The paper therefore does not seek to be definitive – I remain ambivalent, if not highly sceptical, about the potential for positive court-packing in the US context, especially given the lack of consensus on whether the result is to be a more apolitical court or a politically ‘rebalanced’ court. Despite this, I have sought to take the prospect of ‘good’ court-packing seriously, as I believe we are in uncharted constitutional territory as regards repairing the effects of democratic decay, and I hope that this territory can at least be better navigated by learning from those who have travelled similar terrain. Ultimately, all remedial options must be on the table, but surely the cure has to avoid replicating or worsening the disease, and should not be pursued if meaningful alternatives exist. 

Tom Gerald Daly is Deputy Director and Associate Professor of the School of Government at the University of Melbourne. He is also the Director of the global knowledge platform Democratic Decay & Renewal (DEM-DEC) at www.democratic-decay.org

Suggested citation: Tom Daly, ‘Can “Good” Court-Packing be Justified to Repair Democratic  Decay?’ IACL-AIDC Blog (17 March 2022) https://blog-iacl-aidc.org/can-good-courtpacking-repair-democracy/2022/3/17/can-good-court-packing-be-justified-to-repair-democratic-decay.