The Challenges of ‘Good’ Court-Packing: Concluding Thoughts

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Tom Gerald Daly

University of Melbourne

This Symposium began on 17 March 2022 with a central question: can court-packing be a legitimate measure to help repair the democratic system after a significant period of democratic decay? 

Seven weeks and six thought-provoking responses later, and there is no doubt that this is a question with no easy answers. It is also one whose practical relevance continues to grow: as I write, the controversy surrounding the US Supreme Court has again reached fever pitch with the leak of a draft majority judgment that would overturn the Court’s totemic 1973 Roe v Wade ruling on reproductive rights. Meanwhile, although the government’s victory in Hungary’s elections on 3 April may have pushed back the timeline for possible repair of the damage it has done to Hungary’s liberal democracy since 2010, it has also focused minds even more sharply on that question.  

In their contributions to this Symposium, my colleagues have raised a range of important questions, which have encouraged me to reflect deeply on key aspects – and deficiencies – of the framework set out in the paper. 

Indeed, it is a rare gift to have seven established and emerging research leaders, whose work I greatly admire, engage so fully with my own work. The Symposium has featured highly stimulating responses by Mark Tushnet, Ros Dixon, David Kosař and Katarína Šipulová (writing jointly), Josh Braver, Oren Tamir, and Aslı Bâli. Each response has not only raised key questions and added rich layers to the analysis in my court-packing paper, but has also built on issues raised in previous posts. This is most evident in the striking final response by Bâli, which itself serves as a highly incisive overview of the Symposium as a whole.

Five Issues 

The following are some preliminary reflections concerning five main issues raised by my colleagues:

1. The framework’s use and risks

Numerous responses identified serious risks that might arise from the application of my multifactorial framework for approaching the legitimacy of court-packing to ‘repair’ democratic decay. One clarification worth repeating here is that the framework is not intended to provide a multi-step sequence of assessments about democratic context, articulated reform purpose, reform options, reform process, and repetition risk. It is conceived as a matrix approach, to be approached iteratively, so as to help focus our minds on key issues for consideration rather than a series of ‘tests’ that must be passed to ascertain the legitimacy of packing. 

One key issue here, which is not addressed in my paper, is whether the framework is primarily useful to scholars seeking to assess the legitimacy of court-packing reforms, or can be directly employed by political actors themselves. 

On reflection, I think the framework’s main value is for scholars. Various responses quite rightly ask how the framework can be applied in “the real world”, and whether it might be too restrictive, raising issues such as the messiness of political reform, the constraints imposed by windows of opportunity for reform, and the possible need for what we might call ‘noble subterfuge’ (or at least strategic subterfuge) – namely, avoiding a full articulation of the reform’s purposes to mitigate opposition. Others, like David Kosař and Katarína Šipulová, raise additional risks such as the potential ‘chilling’ effect “the mere threat of court-packing” might have on courts.

In addition, Ros Dixon, as well as pointing to risks such as producing a bloated, unwieldy court, raises the most trenchant, and fundamental, concern that even a principled approach to ‘good’ court-packing would set a precedent for abuse by anti-democratic leaders – as shown in her work with David Landau on abusive constitutional borrowing.

While these views tend toward the conclusion that court-packing should always be a last resort, Tamir warns of the political disadvantages of taking ‘nuclear’ options such as packing off the table, when the threat of such action might be strategically employed to achieve compromise solutions. He raises the risk of “paralysis by analysis”; where opponents stall reform through an exhaustive search for alternatives. Braver adds that alternative reforms might be simply unavailable, while Kosař and Šipulová lay out the constraints in the US context that seriously narrow the range of reform options that could have the same or similar effect as packing as regards ‘unpacking’ or ‘rebalancing’ the Court. Sometimes, distasteful measures are not truly a choice. 

Finally, I fully agree with Mark Tushnet’s view, from a constitutional design standpoint, that the multifactorial assessment required to analyse court-packing renders norms on court-packing a bad fit for inclusion in a constitutional text. 

2. Good/bad binaries

Aslı Bâli, in the conclusion to her post, criticises the language of ‘good’ and ‘bad’ court-packing as reducing what is expressly an indeterminate and multifactorial framework to an unhelpful binary. That is a very valid criticism, but the language used reflects the article’s provocative purpose. The binary is intended to focus our minds on the possibility of court-packing that is designed to repair rather than undermine the liberal-democratic system. 

All things considered, court-packing is never ‘good’ in the sense that it is never an ideal choice or an easy choice – I concur with Braver that it has been wrongly presented as “routine and harmless” by various scholars in the US debate. Its contemplation by committed democrats (itself a contested category) reflects at least the perception that something has gone seriously awry in the courts and, by implication, the wider democratic system. For that reason, it might be more accurate – reflecting multiple contributors’ use of the term ‘continuum’ – to speak of ‘better’ and ‘worse’ packing. 

3. Democratic context

Several responses focused on the democratic context dimension of the multifactorial framework as a real sticking point. There seems to be broad consensus that court-packing can be justified in the context of clear transitions from authoritarian to democratic rule. However, as multiple contributors observe, the question of whether the US is suffering democratic decay, and whether that decay is so severe as to justify talk of the need for democratic ‘restoration’ as a specific type of constitutional transition, is a prisoner of partisan political battles. 

It seems entirely correct to say that, in the political arena, there will be no ready acceptance by Republicans of the proposal that US democracy has suffered decay so severe that it requires exceptional measures to repair the system. Connected to my comments in point 1 above, it is a different question to ask whether scholars seeking to assess the legitimacy of reforms pay sufficient attention to the mounting evidence that the US has suffered serious decay. 

Here, I use the term ‘democratic decay’ advisedly: as a term of art referring to significant deterioration of liberal democracy across multiple dimensions, which includes the operation of independent institutions (e.g. appointments to, and the legitimacy of, the Supreme Court), the conduct of free and fair elections (e.g. intensifying gerrymandering and voter suppression), and respect for the rule of law (e.g. disdain for basic legality under the Trump administration). 

However, one can discern a resistance across many of the contributions to the very notion that the US really belongs in a ‘democratic decay’ category that tends to be dominated by young or fragile democracies such as Hungary or Poland. As Braver offers, “The United States has the longest-lasting liberal democratic constitution in effect today”; a claim which tends to elide the longstanding contestation about when the US became a ‘true’ liberal democracy (e.g. Alfred Stepan would say only in the 1960s, with the passage of civil rights reforms) and the long history of ‘authoritarian enclaves’ or ‘subnational authoritarianism’ in the US body politic. Mark Tushnet’s focus on the wider issue of “ambitious reform agendas”, while characteristically illuminating, tends to side-step the question of contemporary democratic decay entirely. 

Read together, many of the contributions tend to frame the current challenges in the US as an aspect, albeit extreme, of ‘ordinary’ politics. I would still offer that the lens of a specific form of constitutional transition focused on reparative measures to address significant democratic decay is not only valuable, but perhaps indispensable, to better understanding these challenges. However, I say this as an outsider, and one acutely aware of my own epistemic limits, being neither an expert on US democracy or US constitutional law. 

4. Comparative case-studies

Linked to the dimension of democratic context, a number of authors see limited value or relevance in the comparative case-studies of Argentina and Turkey: Braver, in particular, identifies a major problem with my analysis in that I cannot identify an example of ‘good’ court-packing outside a relatively clear context of transition from authoritarianism to democracy. It’s certainly true that I can’t find an example of good court-packing in a long-established consolidated liberal democracy. 

However, I see this as simply reflecting the fact that we are in uncharted territory: we have countries like the US facing constitutional challenges for which little guidance can be drawn from the ‘usual suspects’ comparators such as Canada, the UK or Germany, which means that we have to look beyond these comparators for any lessons. I remain convinced that there is real value in doing so, as long as we remain acutely mindful of the often stark democratic, constitutional, contextual, and political differences across different comparators. That is not to say that comparative analysis will offer any ready answers, but it can provide a useful mirror in which we can gaze to better understand our own challenges. 

5. Reform process

How to approach the assessment of the reform process itself seems to have divided the contributors somewhat. Dixon and Kosař and Šipulová see value in how a focus on process might provide a better criterion for assessing the validity of court-packing than rhetoric or the other dimensions of the framework. However, as Braver, Tamir, and Bâli appear to concur, and as I discuss in point 1 above, this may present a trap if we claim that court-packing can only be legitimate if achieved through a fully open, transparent, and deliberative process. That simply might not be possible in the circumstances. 

It is worthwhile to note here that I had two motivations for focusing on process. The first was to  signal the exceptionality of court-packing as a measure: perhaps there are alternative ways of signalling that exceptionality, through procedural means (and not just through rhetoric), which do not set what might be an impossible bar of deliberation or unduly slow down reforms. The second was to escape the partisan straitjacket: the central obstacle in the US context is that everything is viewed through a partisan lens, providing the often unhelpful (if unintended) framing that all voters are allied to one of the two main parties, when that is demonstrably not the case. While resorting to something like a citizens’ assembly (using sortition to select participants) might seem like a potential solution – perhaps permitting reformers to ‘engineer’ an Ackermanian constitutional moment by connecting elites with the grassroots in a meaningful dialogue – like the bipartisan presidential commission it could all too easily fall prey to partisan contestation. There is no easy way out here, and I have no ready answers. 

Elaborating a Research Agenda

Overall, it has been extremely heartening to read that all seven contributors view the framework, for all its defects, as a helpful and significant contribution to constitutional theory. Ultimately, in the face of highly challenging indeterminacy, as constitutional scholars we have to be capable of saying more than “it’s complicated”, or “it’s a matter for political judgement”. However, neither can we attempt to neuter or side-step what are quintessentially matters of difficult political judgement through an unhelpfully lawyerly tendency to bypass difficult issues of substance by focusing on process. 

The paper attempts to at least enable us to see the choices and trade-offs to be made, in contexts of multi-layered indeterminacy, with clearer eyes. That is perhaps the best we can hope for as we “muddle through” (as Braver puts it) the challenges of repairing our democratic systems. 

That this Symposium has provoked such highly valuable critiques has sharpened my own thoughts on this issue, led me to re-think some key questions, and convinced me that this is a project worth pursuing, from a comparative standpoint that incorporates a range of case-studies. While the US context is a particularly difficult case-study, we can expect different patterns of difficulty to be thrown up by case-studies such as Hungary or Brazil, or even potentially other long-standing democracies such as the UK. 

My sincere thanks to all of the contributors, whose responses have greatly enriched this debate and helped to map out key dimensions worthy of further exploration. I also owe a real debt of gratitude to the editorial team at the IACL Blog for hosting the Symposium and providing such useful editorial input: a special thanks here to Anna Dziedzic and Lizzy Perham. The Symposium exemplifies their work in continuing to build the Blog as a global forum for the central (and understudied) challenges in the field of constitutional law. 

Post-Symposium Responses

My final note is that we may publish some further replies in due course, after the Symposium has officially ended today. If you wish to provide a post-Symposium response, you can contact the editors at iacl.blogeditor@gmail.com, or you can contact me informally at thomas.daly@unimelb.edu.au. 

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 Gerald Daly, ‘The Challenges of ‘Good’ Court-Packing: Concluding Thoughts’ IACL-AIDC Blog (5 May 2022) https://blog-iacl-aidc.org/can-good-courtpacking-repair-democracy/2022/5/5/the-challenges-of-good-court-packing-concluding-thoughts.