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Comparative court-packing
David Kosař* and Katarína Šipulová**
In the wake of Donald Trump's presidency, a fierce discussion over expanding the US Supreme
Court erupted. However, the expansion of a court's membership is just one of several courtpacking
techniques. Moreover, the American debate is peculiar due to the unique features of
the US Supreme Court. The aim of this article is to look at court-packing from a comparative
perspective, to link the debates on tinkering with courts' composition on both sides of the
Atlantic, and to bring into the conversation a diverse scholarship in the Global North and the
Global South. Based on experience from other parts of the world, this article provides a new,
broader definition of court-packing that includes not only expansion of the court in question,
but also emptying and swapping strategies. It then discusses the typical justifications for and
dangers of court-packing and provides a prospective pragmatic mid-level theory that allows
us to assess whether a given court-packing plan is legitimate. It argues that the legitimacy
of court-packing has two dimensions: one focusing on whether court-packing pursues a legitimate
aim (ius ad bellum of court-packing) and a second dimension exploring whether
court-packing itself is implemented legitimately (ius in bello of court-packing). This means
that even if politicians have a "just cause" for court-packing, their actions are still limited.
1. Introduction
Court-packing wars are back in the United States. One could see it coming. The passing
of Justice Ruth Bader Ginsburg and her snap replacement by Justice A m y Coney
Barrett became the last straw. For many scholars, commentators, and politicians, this
event undermined the legitimacy and ideological balance of the Supreme Court and
made clear that the situation called for action. Responding to these calls, President
Biden created a thirty-six-member bipartisan expert commission on Supreme Court
reform comprising leading scholars from constitutional law, history, and political
Associate Professor, Department of Constitutional Law and Political Science, Masaryk University, Brno,
Czech Republic. Email: david.kosar@law.muni.cz.
Assistant Professor, Judicial Studies Institute, Masaryk University, Brno, Czech Republic. Email: katarina.
sipulova@law.muni.cz. The research leading to this project has received funding from the European
Research Council (ERC) under the European Union's Horizon 2020 research and innovation programme
(INFINITY, grant no. 101002660). The authors are grateful to Maria Popova, Tom Daly, and Patrick
Casey Leisure for insightful comments, and to Judith Gerhalter for the research assistance.
i«CON(2023), 1-47 https://doi.org/10.1093/icon/moad012
2 Í-CON (2023), 1-47 Artides
science.1
On December 7, 2021, Biden's Commission issued its highly anticipated final
report,2
but failed to suggest any solution.
While the recent debate in the United States has, quite understandably, taken center
stage, court-packing has flourished for decades in other parts of the world. For instance,
in 1990, Argentinian President Carlos Menem increased the number of judges
of the Supreme Court from five to nine, which immediately gave him four seats to fill.3
So did the Venezuelan President, Hugo Chavez.4
In Europe, Recep Erdogan expanded
the membership of the Turkish Constitutional Court,5
Viktor Orban used a similar
strategy to achieve a majority on the Hungarian Constitutional Court,6
and, more recently,
Jaroslaw Kaczynski significantly increased the number of judges on the Polish
Supreme Court.7
Moreover, the examples from other parts of the world show that expanding the
size of the court, which is the traditional meaning of the term court-packing in the
US debates,8
is only one of many possible court-packing strategies. In fact, political
leaders may adopt a whole plethora of different techniques which help them to secure
friendly majorities at apex courts.9
For instance, Argentinian President Alfonsin
announced a plan to reduce the number of Supreme Court judges to force sitting
judges to resign.1 0
Venezuelan and Polish political leaders also used various measures
to get rid of "recalcitrant" judges appointed by opposing coalitions.1 1
Other techniques
were more complex and affected the whole judiciary. For instance, widespread judicial
purges took place in many post-communist judiciaries after the fall of the Berlin Wall
1
President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of
the United States, WHITE HOUSE (Apr. 9, 2021), www.whitehouse.gov/briefing-room/statements-
releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-
on-the-supreme-court-of-the-united-states/.
2
PRESIDENTIAL COMM'N ON THE SUP. CT. UNITED STATES, DRAFT FINAL REPORT (Dec. 2021), www.whitehouse.gov/
wp-content/uploads/2 021/12 /SCOTUS-Report-Final.pdf.
3
Rebecca B. Chavez, The Evolution of Judicial Autonomy in Argentina: Establishing the Rule of Law in an
Ultrapresidential System, 36 J. LATIN A M . STUD. 451 (2004).
4
Matthew M . Taylor, The Limits of Judicial Independence: A Model with Illustration from Venezuela under
Chavez, 46 J. LATIN A M . STUD. 229 (2014).
5
Ergun Özbudun, Turkey's Judiciary and the Drift Toward Competitive Authoritarianism, 50 INT'L SPECTATOR 42
(2015); Berk Esen & Sebnem Gumuscu, Rising Competitive Authoritarianism in Turkey, 37 THIRD WORLD
Q. 1581 (2016); Ozan 0. Varol, Lucia D. Pellegrina, & Nuno Garoupa, An Empirical Analysis of Judicial
Transformation in Turkey, 65 A M . J. COMP. L. 186 (2017).
6
Gabor Halmai, From the "Rule of Law Revolution" to the Constitutional Counter-Revolution in Hungary, in
EUROPEAN YEARBOOK OF HUMAN RIGHTS 367 (2012); Renata Uitz, Can You Tell When an Illiberal Democracy Is
in the Making? An Appeal to Comparative Constitutional Scholarship from Hungary, 13 INT'L J. CONST. L. 279
(2015).
7
A n n a Sledziňska-Simon, The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing
Democratic Transition, 19 GER. L.J. 1839 (2018).
8
Only recently have some scholars adopted a broader definition of court-packing that also includes a reduction
in the size of the Supreme Court. See, e.g., Joshua Braver, Court-Packing: An American Tradition?,
61 B.C. L. REV. 2748 (2020).
9
David Kosař & Katarína Šipulová, How to Fight Court-Packing, 6 CONST. STUD. 133 (2020).
1 0
Chavez, supra note 3; Tom Daly, "Good" Court-Packing? The Paradoxes of Democratic Restoration in Contexts
of Democratic Decay, 23 GERMAN L.J. 1071 (2022).
1 1
Taylor, supra note 4; Sledzinska-Simon, supra note 7; WOJCIECH SADURSKI, POLAND'S CONSTITUTIONAL BREAKDOWN
(2019).
Comparative court-packing 3
as a result of lustration,1 2
retention elections,1 3
and other techniques.1 4
More recently,
Viktor Orbán and Jaroslaw Kaczyňski tried to get rid of inconvenient judges and replace
them with their proteges through a seemingly neutral scheme that lowered the
mandatory retirement age for all judges.
The key aim of this article is to decenter the debate from the unique US context
and to look at court-packing from a comparative perspective. In doing so, we also link
the debates on tinkering with courts' composition on both sides of the Atlantic,1 5
and
bring into the conversation diverse scholarship in the Global North and the Global
South. The second aim is to provide a pragmatic prospective tool that will allow us to
assess the legitimacy of court-packing plans without the benefit of hindsight. In order
to do so, we come up with a broader understanding of court-packing which reflects
experience from all over the world but is detached from the specifics of individual
countries and the dominant American usage of this term. We employ a similar logic
in developing a mid-level theory of court-packing, where we identify the justifications
for and dangers of court-packing on the basis of our comparative analysis.
The purpose of this article is twofold. First, we argue that court-packing covers not
only expanding the size of the court, but also reducing its size and swapping the sitting
judges without altering the court's size. According to our broader definition, courtpacking
is a change of the composition of the existing court, which is irregular, actively
driven (non-random), and creates a new majority at the court or restricts the
old one. Based on this comparative re-conceptualization of court-packing, we then
provide the first comprehensive taxonomy of court-packing techniques. Second, we
develop a pragmatic mid-level prospective theory of court-packing. More specifically,
we argue that the legitimacy of court-packing has two dimensions: whether courtpacking
is pursuing a legitimate aim (ius ad bellum of court-packing), and whether
court-packing is executed legitimately (ius in hello of court-packing). The first dimension
focuses on when it is legitimate to resort to court-packing, while the second
explores how it can be executed legitimately if it pursues a legitimate aim. These
two dimensions are interconnected but should be analyzed separately for analytical
clarity. This means that each of five traditional justifications that are used to trigger
court-packing (to ensure a smooth democratic transition, to eradicate widespread judicial
corruption, to respond to previous illegitimate court-packing, to rebalance an
1 2
David Robertson, A Problem of Their Own, Solutions of Their Own: CEE Jurisdictions and the Problems of
Lustration and Retroactivity, in SPREADING DEMOCRACY AND THE RULE OF LAW? THE IMPACT OF EU ENLARGEMENT ON THE
RULE OF LAW, DEMOCRACY AND CONSTITUTIONALISM IN POST-COMMUNIST LEGAL ORDERS 73, 87 (Wojciech Sadurski,
Adam Czarnota, & Martin Krygier eds., 2006).
1 3
David Kosař & Katarína Šipulová, Judging the Judges, Judging Ourselves: Never-Ending Dealing with the Past
within the Czech Judiciary, in JUDGES FACING TRANSITIONAL JUSTICE: VETTING AND OTHER MECHANISMS AND HOW THEY
AFFECT THE RULE OF LAW (Christina Murray & Jan Van Zyl, forthcoming 2023).
1 4
Erhard Blankenburg, The Purge of Lawyers after the Breakdown of the East German Communist Regime, 20
LAW & Soc. INQUIRY 223 (1995); Inga Markovits, Children of a Lesser God: GDR Lawyers in Post-Socialist
Germany, 94 MICH. L. REV. 2270, 2271-2 (1996).
1 5
Interestingly, the political developments and the resulting debates about court-packing are framed differently.
While European scholars and policy-makers rally against populist governments and discuss how to
fight and undo court-packing, progressive politicians and scholars in the United States try to find ways to
justify it.
4 I-CON ( 2 0 2 3 ) , 1 - 4 7 Articles
unrepresentative court, and to increase the court's efficiency) may require different
additional conditions to be met in order to be legitimate. Such additional conditions
include, for instance, proportionality, or a paired effect (response to previous illegitimate
court-packing), or multipartisan support or deliberative review at multiple
sites (rebalancing an unrepresentative court). We believe that such nuanced analysis
which is detached from the peculiarities of a given country provides a unique tool for
assessing the legitimacy of court-packing plans all over the world.
Finally, we must add an important caveat. This article addresses court-packing of
apex courts, since it is supreme courts and constitutional tribunals that decide the
most politically salient disputes. Although lower courts, particularly those with specific
jurisdictions in criminal or business matters, might also attract political interference,
their court-packing triggers different issues and considerations.
This article proceeds as follows. Section 2 conceptualizes court-packing from a comparative
perspective and explains its defining features in detail. Section 3 divides courtpacking
into three broad strategies (expanding, emptying, and swapping), shows
examples of various mechanisms falling under each strategy, and identifies common
patterns among them. Finally, Section 4 discusses typical meta-values invoked by
proponents and opponents of court-packing as well as the mid-level justifications for
and dangers of court-packing. Subsequently, it analyzes when court-packing is prima
facie legitimate and what additional requirements must be met in order to justify it.
2. Comparative reconceptualization of court-packing
The popularity of court-packing across different regime types suggests that to have
loyal judges at an apex court is simply irresistible for many political leaders. The ideological
alignment of judges, especially at supreme and constitutional courts, is an
important benefit for every government. However, electoral terms do not typically coincide
with judicial mandates. A government winning an election thus usually has
very limited options for changing the composition of courts to its benefit. If it is not
content with judges' attitude to crucial societal questions, it has two options. Either it
accepts the different view and relies on a standard selection process which might not
occur at all during its term, or it refuses to wait. In the latter case, the government
then still has a couple of options. It may stop executing judicial decisions,1 6
which is
a costly decision in terms of the legitimacy of the ruling regime. Alternatively, it can
start influencing the content of judicial decisions formally as well as informally via
intensifying pressure on sitting judges,1 7
limiting courts' jurisdiction,1 8
or hastening
1 6
Bernd Hayo & Stefan Voigt, Mapping Constitutionally Safeguarded Judicial Independence: A Global Survey, 1 1
J. EMPIRICAL LEGIS. STUD. 1 5 9 ( 2 0 1 4 ) .
1 7
The famous "switch in time that saved nine" in FDR's era, when Associate Justice Owen J. Roberts
changed his jurisprudential position (see Daniel E. Ho & Kevin M . Quinn, Did a Switch in Time Save Nine?,
2 J. LEGIS. ANALYSIS 6 9 ( 2 0 1 0 ) ) , is a typical example of such pressure that can be found almost everywhere
in the world.
1 8
Taylor, supra note 4 .
Comparative court-packing 5
the change of composition of the court.1 9
This article focuses on the last group of
interferences that concern changes in a court's composition.
Such interferences into courts' composition date back several centuries2 0
and span
virtually all continents.2 1
Yet, despite the plethora of historical episodes, scholarship
has so far struggled to come up with a unifying term able to conceptualize these
interferences into courts' composition. Most debates on court-packing have so far
centered on the examples from the United States. However, the US debates have been
dominated by FDR's court-packing plan and its legacy. That is why the US literature
has adopted a narrow, idiosyncratic view of court-packing. Until very recently,2 2
courtpacking
was associated almost exclusively with increasing the number of judges on a
given court. This, however, is only one of many options for achieving a friendly majority
at a court. Even the United States has witnessed four attempts to reduce the size
of the Supreme Court, two of which were eventually successful.2 3
Other techniques to
achieve intentional change of a court's composition have been used in Latin America,
Central and Eastern Europe, and elsewhere, as the abovementioned examples demonstrate.
Many of these interferences outside the United States have been framed not as
court-packing, but rather as attacks on judicial independence, abusive dismissal of
judges, capturing the selection process of judges, or violations of the separation of
powers. The aim of this paper is to remedy the drawbacks of United States-centrism
and global fragmentation and to study court-packing from a comparative perspective.
Following these observations, we adopt a broad definition of court-packing,
building on our own vast comparative analysis of various examples of how political
leaders have intentionally transformed the composition of courts all over the world.
This definition is generally applicable and free from idiosyncratic usages in individual
jurisdictions. According to this definition, court-packing is "any change of the composition
of the existing court which is irregular, actively-driven (non-random) and creates a
new majority at the court or restricts the old one."2 4
In what follows, we will explain the
key components of this definition.
The definition consists of five elements that together are sufficient and necessary
for a given reform to be an example of court-packing. Its first and core element is
the change of the composition of the court. This change may be both quantitative
and qualitative. A quantitative change of composition includes increases as well as
decreases in the number of judges on a given court. Expanding the size of the court
does not affect the mandates of sitting judges, but it dilutes their influence. On the
other hand, decreasing the court's size strips the affected judges of the judicial robe. A
qualitative change of composition then includes replacing the sitting judges with new
ones without increasing or decreasing the size of the court. Such change, of course,
1 9
ANDREA CASTAGNOLA, MANIPULATING COURTS IN NEW DEMOCRACIES: FORCING JUDGES OFF THE BENCH IN ARGENTINA 8 4 -
1 0 8 ( 2 0 1 8 ) .
2 ( 1
DENIS GALLIGAN, THE COURTS AND THE PEOPLE ( 2 0 2 1 ) .
21
See Kosař & Šipulová, swpra note 9 .
2 2
Braver, supra note 8.
23
Ibid.
2 4
We introduced this definition in Kosař & Šipulová, supra note 9 , but we did not elaborate on its components.
6 I-CON (2023), 1-47 Articles
presupposes that some sitting judges must vacate their seats, either involuntarily or
"voluntarily," for the new judges to replace them. Of course, quantitative and qualitative
changes may be combined,2 5
but we keep them separate for analytical purposes.
Second, court-packing is an irregular change of the court's composition. That
means a change which does not observe the constitutional norms set in the past.
Therefore, the nomination of a conservative judge following the voluntary retirement
or natural death of a liberal one (or vice versa), which leads to a change of majority
at the court, does not qualify as court-packing. For example, Donald Trump's appointment
of Brett Kavanaugh as an Associate Justice of the US Supreme Court after
Associate Justice Anthony Kennedy had resigned is not court-packing in our understanding.
Although it allowed Donald Trump to achieve a swing vote,2 6
the President's
competence to select new judges is laid down by the Constitution.2 7
This is a crucial
criterion of our definition, and we know that there will be controversy about what
counts as regular and what irregular. There are two major problems here. First, sometimes
there is no agreement on what the content of the constitutional norm set in the
past is. Just think of the abovementioned snap replacement of deceased Ruth Bader
Ginsburg by A m y Coney Barrett. Second, sometimes it can be contested what counts
as a "constitutional norm." We understand constitutional norms in a material sense
as encompassing not only norms to be found, explicitly or implicitly, in a big-C constitutional
code, but also constitutional conventions2 8
and small-c norms of the material
constitution.2 9
Cyclical court-packing is thus still court-packing, because it deviates
from the existing constitutional norm and hence it is irregular. In sum, evaluation of
the regularity criterion is context-dependent. However, the fact that there might be
a gray area in which assessment of the irregularity of a change of the composition
of the court might depend on the nuanced understanding of domestic law, political
culture, and history does not detract from the value of this criterion in the majority
of cases.
Third, the change of the composition must be actively driven. Our definition thus
does not include changes in courts' composition which are beyond the control of key
stakeholders involved in the selection of judges. A typical example is the occurrence
of a significant number of vacancies at a given court within a short time span, a situation
which is not triggered by any key stakeholder involved in the selection of judges.
It is instead triggered by other factors, such as the natural deaths of several judges. A
typical example is the sudden death of two associate justices of the US Supreme Court
in 1 9 3 8 - 3 9 , which gave FDR two seats on the Supreme Court. FDR capitalized on this
opportunity and managed to get a new majority on the Supreme Court, despite the
2 5
A fitting example is the court-packing implemented by Hugo Chavez and his steps to control Venezuela's
judiciary. Taylor, supra note 4.
2 6
On the concept of a swing justice, see Peter K. Enns & Patrick C. Wohlfarth, The Swing Justice, 75 J. POL.
1089(2013).
27
See Eric Bradner, Joan Biskupic, & Jeremy Diamond, Trump Picks Brett Kavanaugh for Supreme Court, CNN
(July 8, 2018), www.cnn.com/2018/07/09/politics/trump-supreme-court-pick/index.html.
2 8
See Scott Stephenson, Constitutional Conventions and the Judiciary, 41 OXFORD J. OF LEGAL STUDIES 750 (2021).
2 9
For a similar understanding of a constitutional norm, see Tarunabh Khaitan, Guarantor Institutions, 16
ASIAN J. OF COMP. L. S40, S51-S52 (2021).
Comparative court-packing 7
fact that his court-packing plan failed.3 0
The deaths of Antonin Scalia and Ruth Bader
Ginsburg pose more difficult problems, because here the "actively driven" and the
irregularity requirements operate together. These two deaths opened a rare unforeseen
window of opportunity for Republicans to alter the composition of the Supreme
Court, but the categorization of these two cases as court-packing depends on whether
or not the "SCOTUS bipartisan constitutional convention" that the US Senate cannot
confirm a Supreme Court Justice i n a presidential election year without bipartisan
support exists.3 1
Fourth, the change targets the existing court. This means that court-packing does
not cover the creation of new judicial bodies.3 2
The establishment of new courts such
as the infamous Czechoslovak State Court (1948-52), introduced by the Communist
regime in order to conduct show trials of its political opponents,3 3
or the more recent
proposal by Viktor Orbán to create a new system of administrative courts3 4
is thus
outside our definition,3 5
even if it may serve similar goals to court-packing. We are
not claiming that the creation of new courts cannot follow similar aims as intentional
change of the composition of existing courts. However, it is a different court-curbing
practice.3 6
The fifth and final characteristic of our court-packing definition is that it creates
a new majority or restricts the old one.3 7
This majority is multidimensional, as
it could be represented by judges ideologically aligned with the executive power,
3 0
WILLIAM LEUCHTENBURG, T H E SUPREME COURT REBORN: T H E CONSTITUTIONAL REVOLUTION IN THE A G E OF ROOSEVELT
(1995); Gregory A . Caldeira, Public Opinion and The U.S. Supreme Court: FDR's Court-Packing Plan, 81 A M .
POL. SCI. REV. 1139 (1987); Barry Cushman, The Court-Packing Plan as Symptom Casualty, and Cause of
Gridlock, 85 NOTRE DAME L. REV. 2089 (2013). See also BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE
STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998); Barry Cushman, The Man on the Flying Trapeze 1 (Univ.
Va. School of L., Pub. L. & Legal Theory Working Paper Series no. 6, 2012); R. David Proctor, An Overview
of Judicial Independence from Impeachments to Court-Packing, 47 U. M E M . L. REV. 1147 (2016); Richard J.
Sweeney, Constitutional conflicts in the European Union: Court Packing in Poland versus the United States, 18
ECON. Bus. REV. 3 (2018); Mark Tushnet, Court-Packing on the Table in the United States?, VERFASSUNGSBLOG
(Apr. 3, 2019), https://verfassungsblog.de/court-packing-on-the-table-in-the-united-states.
3 1
Rivka Weill, Court-Packing as an Antidote, 42 CARDOZO L. REV. 2 705 (2021).
3 2
Establishing a new court raises a whole set of different issues in the process of political transformation.
TOM GERALD DALY, THE ALCHEMISTS: QUESTIONING OUR FAITH IN COURTS AS DEMOCRACY-BUILDERS 8 8 - 9 (2017).
3 3
See JAROSLAV VOREL ETAL., ČESKOSLOVENSKÁ JUSTICE VLETECH 1 9 4 8 - 1 9 5 3 v DOKUMENTECH 1 5 - 1 6 , 8 5 - 9 , 1 7 1 - 8 7 ,
332-3 (2003).
3 4
Renata Uitz, An Advanced Course in Court Packing: Hungary's New Law on Administrative Courts,
VERFASSUNGSBLOG (Jan. 2, 2019), https://verfassungsblog.de/an-advanced-course-in-court-packing-
hungarys-new-law-on-administrative-courts/.
3 5
For a different opinion, see Uitz, supra note 34.
3 6
We treat "court-curbing" as an umbrella term, which is broader than court-packing as it includes, apart
from court-packing, also other strategies such as procedural (e.g. introducing an increased quorum, the
sequence rule, or the supermajority requirement), financial (e.g. slashing court budgets, reducing judicial
salaries, or pension benefits), institutional (e.g. jurisdiction stripping, the establishment of a new
court, abolition of the court, or a merger of existing courts), and judicial leadership (e.g. replacing the
Chief Justice or court presidents) measures.
3 7
We are aware of the fact that purposeful court-packing may result from a different motivation. See, e.g.,
Wojciech Sadurski, Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal,
to a Governmental Enabler, 11 HAGUE J. RULE L. 63 (2019). These motives are, however, of only secondary
character to us, because taking over control of the court was historically always the very first aim of
court-packing.
8 I-CON (2023), 1-47 Articles
judges with no ties to the previous regime, or judges from certain social or age
groups. Our definition is therefore objective and captures changes in majority irrespective
of whether or not they were intended by political actors. Even legislation
primarily (genuinely or seemingly) pursuing a different aim which creates a new
majority only as a side effect therefore also falls within our definition of courtpacking.
A fitting example is the reduction in the mandatory retirement age for
judges in Hungary and Poland.
The subsequent behavior of judges appointed via court-packing is also irrelevant.
If the political leader increases the number of judges, aiming to secure a loyal majority,
this step will qualify as court-packing even if judges emancipate and refuse
to submit to the politician's expectation in their decision-making (we explore these
considerations in more detail in Section 4).
It is also worth noting that a loyal majority does not necessarily mean an exact
majority of all judges of the court. Many courts, especially supreme courts and constitutional
tribunals, allocate cases to smaller panels and chambers. Sometimes, therefore,
it is enough to change the composition of the most important panels, typically
the election chamber,3 8
constitutional chamber,3 9
control chamber,4 0
or a disciplinary
chamber.4 1
In other words, court-packing does not necessarily need to target the majority
of the whole court. It is enough if it aims at getting a majority in a strategically
important chamber.
Similarly, the size of the change of the court's composition is irrelevant in order
for it to qualify as court-packing. In our understanding, court-packing is any
strengthening4 2
or weakening4 3
of the existing majority, or a creation of a new one
(if there was no stable majority). In some cases, even the exchange of a single judge
3 8
This was a tactic of Hugo Chavez's in Venezuela. Taylor, supra note 4.
3 9
This applies to jurisdictions where there is no specialized constitutional court and the task of constitutional
review is vested in a specialized chamber of the Supreme Court. Taylor, supra note 4.
4 0
See Case C-487/19 W. Z. and des affaires publiques de la Cour supreme (nomination).
4 1
A well-known example of court-packing consisting of the creation and staffing of the disciplinary
chamber of the Supreme Court comes from Poland and was found to be problematic also
by the CJEU. See Joined Cases C-585/18, C-624/18, C-625/18, A . K. and Ors. v. Sqd Najwyzszy,
ECLI:EU:C:2019:982 (Nov. 19, 2019); Case C-791/19, Comm'n v. Poland, ECLI:EU:C:2021:596
(July 15, 2021).
4 2
Imagine a situation where former US President Trump decided to pass a law which would immediately
increase the number of US Supreme Court justices by two, strengthening the majority he had already had
at the Supreme Court since 2018.
4 3
Imagine that the government has five out of thirteen Constitutional Court judges on its side. Even if
it increases the number of constitutional judges "only" by two to fifteen and thus has only a minority
of seven judges, the power distribution changes and its position is definitely stronger (see Jan Petrov,
(De-)judicialization of Politics in the Era of Populism: Lessons from Central and Eastern Europe, 26 INT'L
J. HUM. RIGHTS 1181, 1192-1194 (2021)). Moreover, at courts where a supermajority is required to
reach a certain decision (e.g. to strike down a statute; see in general Cristobal Caviedes, A Core Case
for Supermajority Rules in Constitutional Adjudication, 20 INT'L J. CONST. L. 1162 (2022)), the seven
"pro-government" judges can block such decisions, despite being a minority. This move may in turn
even paralyze the court (see Sadurski, supra note 37). This scenario thus must a priori be considered
court-packing.
Comparative court-packing 9
(the so-called swing justice in US parlance4 4
) may allow the political actor crucially
to change the distribution of power at the court.4 5
Similar observation would hold
at courts where there was no stable majority prior to court-packing. What matters
is whether a new majority is formed or an old one is restricted. Hence, irregular
change of the composition of a previously unpredictable or evenly split court is still
court-packing.
On the other hand, changes in the composition of the court that will become effective
only in the future, when the respective political actors may no longer be part of the
executive, are not within our definition of court-packing. Such reforms are not aimed
at creating a new majority at the court or restricting the old one. A typical example of
such reform is doubling the number of judges of the EU's General Court. The increase
in the number of judges from twenty-eight to fifty-four led to many controversies
within the European Court of Justice4 6
and perhaps, due to the reducing docket, was
in retrospect not even necessary. It is however clear that it was not aimed at creating
a new majority, as the increase in judges was spread over several years when the key
actors of the reform had already gone and could not benefit from the reform. A similar
example comes from Czechia. A n increase in the Supreme Administrative Court's
judges from thirteen (January 2003) to thirty-three (September 2020) was not courtpacking.
The increase was gradual, spread over several years and among several presidents
and ministers of justice, and was conditioned by the consent of the Chief Justice
of the Supreme Administrative Court.
3. Court-packing modalities
In the previous section we explained our conceptualization of court-packing and its
key elements. In this section we further develop that conceptualization and identify
three categories of court-packing. We collected examples of court-packing from all
over the world and found that they follow three broad patterns: (1) the expanding
strategy, which increases the size of the court by adding new judges to the sitting
ones; (2) the emptying strategy, leading to a decrease in the number of sitting judges;
and (3) the swapping strategy, by which political leaders replace sitting judges with
more loyal substitutes without changing the size of the court. Each of these strategies
contains several techniques.
All three court-packing strategies, with the relevant examples of individual
techniques, are depicted in Table 1. The examples included are illustrative and do
4 4
Enns & Wohlfarth, supra note 26.
4 5
This is particularly relevant for courts with a small number of judges, where the exchange of one person
might significantly change the division of power. See the resignation of Andrzej Wrobel, Justice of the
Polish Constitutional Tribunal, discussed below in note 135. The debates about replacing a swing judge
in the US context are also particularly relevant here (see Enns & Wohlfarth, supra note 26). However,
sometimes even replacing the lonely dissenter may effectively silence the opposition.
4 6
Alberto Alemanno & Laurent Pech, Thinking Justice Outside the Docket: A Critical Assessment of the Reform of
the EU's Court System, 54 CMLR 129(2017); Duncan Robinson, The IstRuleof EC]Fight Club... Is About to Be
Broken, FIN. TIMES (Apr. 27, 2015), www.ft.com/content/b3979694-b42b-38b4-bla7-dddbdb2cl878.
10 KON (2023), 1-47 Artides
Table 1. Typology of court-packing strategies. Italics mark unsuccessful attempts at
court-packing
Strategy Technique Country
Expanding strategy Increasing the number of
judges
United States (federal level) 1937
Argentina 1957, 1987, 1990
Brazil 1965
Bolivia 1967
Russia 1993
Chile 1984, 1998, 2004
Honduras 2001
Zimbabwe 2001
Venezuela 2004
Turkey 2012
Hungary 2012
United States (state level: North
Carolina 2013, 2016; Arizona
2016; Georgia 2016)
Poland 2017
Emptying strategy Downsizing the court Argentina 1950, 1966
Brazil 1968
Mexico 1994
Ecuador 2004
Thwarting the selection Serbia 2002-2010
Ukraine 2005, 2006
CzechRepublic 2003-05, 2011-13
Poland 2015, 2016
United States 2016
Albania 2018
Slovakia 2007
Forced vacation Poland 2017
Benching Venezuela 2004
Pakistan 2007
Poland 2015
Swapping strategy Introduction or reduction of
mandatory retirement age
Peru 1973-77
Bangladesh 1977
Hungary 2012
Poland 2016
Brazil 2019
Removal of life tenure or
shortening the limited term
El Salvador 1950, 1966
Brazil 1968
Venezuela 1999
Vetting Czechoslovakia 1991
Mexico 1994
Bolivia 2009
Macedonia 2011
Ukraine 2014
Albania 2016
Slovakia 2019
Abusive disciplining Slovakia 2002
Poland 2020
Comparative court-packing 11
Table 1. Continued
Strategy Technique Country
Abusive impeachment Argentina 1947
Bolivia 1992
Chile 1992-93
Argentina 1990-98, 2003
Peru 1997
Chile 2004
Sri Lanka 2013
Philippines 2018
El Salvador 2 021
Abusive criminal
prosecution
Malaysia 1988
Ukraine 2002
Chile 2004
Turkey 2016
Poland 2016
Abusive dismissal Egypt 1955, 1969
Peru 1969, 1973
Argentina 1976
El Salvador 1979
Chile 1988, 2004
Guatemala 1993
Mexico 1993, 1994
Ecuador 2004, 2007
Haiti 2005
Niger 2009
Venezuela 1999, 2013
Turkey 2016
Ukraine 2020-21
Forced resignation Argentina 1960, 2003
Chile 1974, 2004
Zimbabwe 2001
Bolivia 2005, 2007
Pakistan 2007
Golden parachute Argentina 1958
United States 1965
Poland 2016
Premature appointment Poland 2015
Use of violence and physical
attacks
Colombia 1985, 1979-91
El Salvador 1988
Guatemala 1988
Senegal 1993
Benin 1996
Madagascar 2001
not aspire to capture all historical accounts of court-packing.4 7
Our aim was not to
compile an exhaustive list, but to achieve as much diversity as possible regarding
4 7
The examples are so numerous that we cannot include them all here. We thus decided to upload the full
table, including references: JUDICIAL STUDIES INSTITUTE, https://justin.law.muni.cz/en/publications (last visited
Jan. 24, 2023). We encourage readers to write to us regarding court-packing plans, old as well as
new, not mentioned therein using our email addresses included in the heading of the article.
12 I-CON (2023), 1 - 4 7 Articles
court-packing techniques and their countries of origin. Moreover, we limited our analysis
to court-packing plans that took place after World War II,4 8
with the exception of
the iconic FDR's plan. On the other hand, our list includes both successful and unsuccessful
attempts at court-packing (unsuccessful examples are in italics), because even
the threat of court-packing can have consequences. In what follows, we discuss each
court-packing strategy in more detail.
3.1. The expanding strategy: Increasing the number of judges
Increasing the number of judges sitting at the court is the most common courtpacking
strategy in both democratic and non-democratic countries, perhaps because
of its seemingly rule-of-law-compatible character. Although historically the expansion
of a court's size has to a certain degree been driven by the growing complexity
of legal norms which resulted in the need to divide apex courts into more specialized
chambers, the very same measures are often used as court-packing strategies.4 9
This is
particularly so if the increased number allows the executive power to secure a friendly
majority on the given court. Consequently, there are plenty of examples that show
how tinkering with the number of judges at apex courts becomes a tool used by the
executive in order to achieve a politically friendly judiciary.
The best-known example of the expanding strategy is FDR's court-packing plan
of 1 9 3 7 , which resulted from his clash with the conservative majority of the US
Supreme Court who opposed his New Deal legislation.5 0
In response to this opposition,
FDR proposed a bill that permitted h i m to nominate one additional judge for
every sitting justice of the Supreme Court who had served ten or more years and had
declined to retire at the age of seventy. As six justices were over seventy at that time,
this formula would immediately have given FDR six new nominations, enough to
secure a stable majority. In justifying his plan, FDR relied on the alleged inefficiency
of the Supreme Court, but the Court quickly refuted his claims.5 1
After FDR's real
ideological rationale was exposed, his court-packing plan was eventually defeated,
but only after a substantial political battle the outcome of which was in doubt to
the end, despite fading public support for the court-packing p l a n . 5 2
Nevertheless, it
is important to add that as much as FDR lost the 1937 battle, he won the war as, by
the end of 1941, after the deaths of Cardozo and Butler and the retirement of four
4 8
For instance, several court-packing plans were put into operation in the US in the nineteenth century.
Braver, supra note 8.
4 9
Anibal Perez-Linan & Andrea Castagnola, Judicial Instability and Endogenous Constitutional Change: Lessons
from Latin America, 46 BRIT. J. POL. SCI 395 (2016).
5 ( 1
Note that it is heavily contested among American historians (JEFF SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT
vs. THE SUPREME COURT (2010)), lawyers (Cushman, supra note 30), and political scientists (Caldeira, supra
note 30) how much the Supreme Court actually harmed FDR's flagship New Deal statutes. We cannot
delve into this debate here.
5 1
SHESOL, supra note 50.
5 2
The story of FDR's court-packing plan (and its prequel and aftermath) in detail is extremely complicated
and also hotly contested. See LEUCHTENBURG, supra note 30; Caldeira, supra note 30; Cushman, The Man on
the Flying Trapeze, supra note 30; Proctor, supra note 30; Sweeney, supra note 30; Tushnet, supra note 30.
Comparative court-packing 13
other justices, FDR was able to nominate seven out of nine justices.5 3
Since then, no
court-packing proposal on the federal level has gone as far in the legislative process
as FDR's plan, but similar plans were introduced and sometimes even successful at
the state level.5 4
In Latin America, a famous quotation from President Menem—"why should I be
the only President who won't appoint his own Supreme Court?"5 5
—has similar iconic
status. In 1994, Menem introduced a constitutional reform that seemingly reduced
his powers and bolstered judicial independence. Yet, before taking this step, he almost
doubled the size of the Argentinian Supreme Court by increasing the number of sitting
judges from five to nine.5 6
This allowed him to create a pro-government majority
on the Supreme Court, known in Argentina as the mayoria automdtica menemista
(the automatic Menemist majority) because of its propensity for ruling in Menem's
favor.5 7
He was not alone though, as in Argentina increasing the size of the Supreme
Court has been a signature political move exercised by many presidents.5 8
In fact,
the expanding strategy has flourished across Latin America. A Bolivian President,
Barrientos, implemented a similar technique in 1967 by expanding the number of
Supreme Court judges from ten to twelve.5 9
Likewise, the Venezuelan President Hugo
Chavez increased the number of Supreme Court judges from twenty to thirty-two.6 0
Other Latin America countries have experienced similar episodes.6 1
Central America
has witnessed this strategy as well. For instance, in 2001 the Honduran Congress
ratified a constitutional amendment which led to a comprehensive restructuring of
the judiciary, including an increase in the size of the Supreme Court from nine to fifteen
judges.6 2
The same technique has also found traction in Europe. In 1993, Russian President
Boris Yeltsin famously suspended the Russian Constitutional Court led by Valerii
Zorkin and adopted a new constitution by referendum that increased the number of its
53
See Frank Reel, When a Switch in Time Saved Nine, N Y . TIMES, NOV. 10, 1985, at E26, www.nytimes.
com/1985/11/10/opinion/l-when-a-s witch-in-time-saved-nine-14316 5 .html.
54
See Elizabeth L. Robinson, Revival of Roosevelt: Analyzing Expansion of the Supreme Court of North Carolina
in Light of the Resurgence of State Court-Packing Plans, 96 N.C. L. REV. 1126 (2018); Martin K. Levy, Packing
and Unpacking State Courts, 61 W M . & M A R Y L . REV. 1121 (2020).
5 5
Chavez, supra note 3; https://www.gretchenhelmke.com/uploads/7/0/3/2/70329843/judicial_manipulation_helmke.pdf;
Daly, supra note 10.
5 6
Chavez, supra note 3, at 4 5 5.
5 7
Rebecca Bill Chavez, The Appointment andRemovalProcess of Judges in Argentina: The Role of Judicial Councils
and Impeachment Juries in Promoting Judicial Independence, 42 LATIN A M . POL. & SOC'Y 36 (2007).
5 8
Helmke, supra note 55.
59
See also Perez-Lifiän & Castagnola, supra note 19.
6 0
The instrumental nature of this court-packing was apparent, as Chavez increased the number of
Supreme Court justices in a way that secured him a majority in every single panel—including the electoral
one. See Taylor, SMpranote4, at253.
6 1
See Anibal Perez-Lifiän & Andrea Castagnola, Presidential Control of High Courts in Latin America: A
Long-term View (1904-2006), 1 J. POL. LATIN A M . 87 (2009); Azul Aguiar-Aguilar, Courts and the
Constitutional Erosion of Democracy in Latin America. V-DEM Institute. Users Working Paper (May
2020).
6 2
Freedom House, Countries at the Crossroads 2005: Honduras, REFWORLD (May 5, 2005),www.refworld.
org/docid/4 738690c5a. html.
14 I-CON ( 2 0 2 3 ) , 1 - 4 7 Articles
justices from fifteen to nineteen, allowing Yeltsin to appoint six new justices by 199 5.6 3
In 2012, Recep Erdogan expanded the membership of the Turkish Constitutional
Court from eleven to seventeen judges.6 4
Due to its newly gained parliamentary supermajority,
Orban's administration adopted a constitutional amendment that increased
the number of judges of the Hungarian Constitutional Court from eleven to fifteen
and gave Orban four seats to fill, which helped him gradually to silence the court as
an effective veto.6 5
Jaroslaw Kaczynski borrowed the expanding strategy from Orban's
playbook and expanded the number of judges of the Polish Supreme Court from
eighty-one to 1 2 0 . 6 6
3.2. The emptying strategy: Reducing the number of judges
Unlike the expanding strategy, the emptying strategy seeks to get rid of those who
oppose the sitting government. However, reducing the court's size is a costly political
decision, as it more openly interferes with judicial independence and is rather
difficult to justify to the public. In addition, a decreasing the number of judges,
unless related to a complex reform of the judiciary and procedural rules, might
be challenged on efficiency grounds as it may result in a backlog of cases and
failure to deliver timely justice. The emptying strategy can be pursued by legislative
downsizing of the court as well as by less visible creative executive actions that
are temporary.
a) Downsizing
Rare examples of straightforward downsizing of a court through legislation can be
found in Latin America. For example, a reduction in the number of Supreme Court
judges has taken place three times in Argentina.6 7
Argentinian presidents aspired to
select their own courts and bench mathematics were merely a technique to achieve
this. Cycles of increasing and downsizing the Supreme Court therefore were repeated
for decades. In 19 5 0, Argentinian President Juan Peron reduced the number of judges
from eight to five. In 1958, Arturo Frondizi increased it to seven, but after the coup
of 1966 Juan Carlos Ongania reduced it to five again. Carlos Menem's expansion of
the Supreme Court to nine justices, outlined above, was undone in 2006 when the
number of judges returned to five. Another example comes from Brazil, which reduced
the number of the Supreme Federal Tribunal's justices from sixteen to eleven, undoing
6 3
Note that only thirteen seats out of fifteen were filled when the constitutional reform was implemented.
See Herbert Hausmaninger, Towards a New Russian Constitutional Court, 2 8 CORNELL INT'L L.J. 3 4 9 ( 1 9 9 5 ) ;
ALEXEI TROCHEV, JUDGING RUSSIA: THE ROLE OF THE CONSTITUTIONAL COURT IN RUSSIAN POLITICS 1 9 9 0 - 2 0 0 6 at 7 3 - 8
( 2 0 0 8 ) .
6 4
Ozbudun, supra note 5; Esen & Gumuscu, supra note 5; Varol, Pellegrina, & Garoupa, supra note 5.
6 5
David Landau, Abusive Constitutionalism, 4 7 U.C. DAVIS L. REV. 2 0 9 ( 2 0 1 3 ) . But note that it took several
years for Orban to achieve full control of the Hungarian Constitutional Court.
6 6
Sledzinska-Simon, supra note 7; Fryderyk Zoll & Leah Wortham, Judicial Independence and Accountability:
Withstanding Political Stress in Poland, 4 2 FORDHAM INT'LL.J. 8 7 5 ( 2 0 1 9 ) .
6 7
Jodi Finkel, Judicial Reform in Argentina in 1990s: How Electoral Incentives Shape Judicial Change, 3 9 L A T . A M .
RES. REV. 5 6 ( 2 0 0 4 ) .
Comparative court-packing 15
the court-packing implemented by the military government in 1 9 6 5 . 6 8
It is important
to stress here that virtually all examples of downsizing the court were reactions to
previous court-packing by means of expanding the size of the court. This suggests
that cyclical court-packing raises specific issues that should be studied in depth in the
future.
b) Thwarting the selection process
Nevertheless, for ruling politicians it is sometimes enough if they reduce the number
of judges on a given court temporarily through executive actions, either to paralyze
the court or to wait until a regular vacancy appears and they can fill it with their own
candidates. Such reduction in the number of sitting judges is often a prequel to the
swapping techniques,6 9
but it should be addressed separately for analytical purposes.
A prime example of such temporary emptying of the court is thwarting the selection
process. This often happens if the political leaders do not control the whole process
of the selection of judges, and thus they try to block it by not carrying out an essential
procedural step. This is actually a rather widespread phenomenon, but it is
more common in countries where more actors take part in the selection process, as it
suffices if one of them decides to block an unwelcome candidate.
This happens, for instance, if one of the authorities which can nominate a judge
does not act. This was the case of Czech President Václav Klaus who refused to nominate
a new candidate for the Constitutional Court, and complicated (2011-13) or
even severely restricted (2003-05) the functioning of the Constitutional Court.7 0
Similar examples have occurred in other European jurisdictions. Probably the most
famous one is the refusal of the Polish President Duda to appoint three justices legitimately
selected by Civil Platform's parliament in 2015. Duda justified the thwarting
of the selection by pointing out that the previous government selected five justices,
two prematurely, since their terms of offices were to finish only after the new parliamentary
election (see below on premature appointment). According to PiS and Duda,
this made the whole selection illegitimate. However, this step allowed PiS to swiftly fill
five seats instead of the two they legitimately could according to the applicable constitutional
norms.7 1
The Constitutional Tribunal itself later confirmed that, thwarting
the selection of three duly selected judges.7 2
A different scenario played out in Albania,
where in 2 0 1 7 - 1 8 the government blocked the activity of the selection committee for
judges and thus thwarted the appointment of new Albanian constitutional justices.7 3
6 8
Keith S. Rosenn, The Protection of Judicial Independence in Latin America, 19 U . MIAMI INTER-AM. L. REV. 28
(1987).
69
See infra Section 2.3.
7 ( 1
However, we must add that classifying President Klaus's actions as court-packing is not uncontroversial.
See also David Kosař & Ladislav Vyhnánek, The Czech Constitutional Court, in CONSTITUTIONAL ADJUDICATION:
INSTITUTIONS 119 (Armin von Bogdandy, Peter Huber, & Christoph Graben warter eds., 2020).
71
See Sadurski, supra note 3 7, at 65-8.
72
See Zoll & Wortham, supra note 66; Xero Flor w Polsce sp. z o.o. v. Poland, App. No. 4907/18, Eur. Ct. H.R.,
May 7, 2021, https://hudocechr.coe.int/fre?i=001-210065.
73
Meta Blames Majority for Non-Functioning of Constitutional Court, ALBANIAN DAILY NEWS (Sept. 16, 2019),
www.albaniandailynews.com/index.phpPidm-3 5 519&mod=2.
16 í«CON (2023), 1 - 4 7 Articles
c) Forced vacation
The Polish Law and Justice party, in its effort to capture the Polish judiciary although
it did not enjoy a constitutional supermajority, has also resorted to other innovative
court-packing methods. In 2017, the pro-governmental interim president of the Polish
Constitutional Tribunal, Julia Przyl^bska, sent her opponent, the vice-president of the
Constitutional Tribunal, Stanislaw Biernat, on a forced vacation. This technique obviously
does not immediately end a judge's term of office, but it allows political leaders,
with the help of a court president, to prevent such judge from sitting at hearings and
deciding cases. Biernat's example shows that he was effectively sidelined and de facto
suspended from judicial office for the last months of his term.7 4
Hence, the size of the
Polish Constitutional Court was reduced, albeit temporarily.
d) Benching
Another creative technique with a similar effect is the benching of judges, which is
their de facto suspension. A n example of this technique can once again be found in
Poland. In 2017, Polish Minister of Justice Zbigniew Ziobro retroactively questioned
the legality of the selection of three Constitutional Tribunal justices who had,
since 2010, executed their mandate unchallenged.7 5
Although these allegations of
illegalities during the 2010 selection process were clumsy and clearly intended to get
rid of the anti-government justices on the Constitutional Tribunal, another panel of
the Constitutional Tribunal, controlled by pro-Kaczyňski judges, removed these three
justices from their respective panels, arguing that they might be biased in constitutional
review cases where the Minister of Justice himself was a party to the proceedings.
The fact that in practice the Minister of Justice (acting as a General Prosecutor)
very rarely initiates a constitutional review and his role is merely formal did not affect
the Constitutional Tribunal's opinion.
The newly appointed pro-governmental President of the Constitutional Tribunal,
Julia Przyl^bska, yet again kept these three justices in the "penalty box" until the very
end of their mandates.7 6
Apart from Poland, benching has been applied also in Latin
America. Take, for example, the case of the benching of the recalcitrant Supreme
Court of Venezuela judge Frankline Arrieche by President Hugo Chavez.7 7
In both
cases, the size of the court was decreased temporarily without the immediate creation
of a new vacancy, which distinguishes this technique from swapping techniques
discussed in the next section.
3.3. The swapping strategy: Replacing sitting judges
The swapping strategy is different from the enlarging and emptying strategies. It does
not alter the composition of the court through a change of its size. In contrast to the
7 4
Zoll & Wortham, supra note 66; Kosař & Šipulová, supra note 13.
7 5
Ziobro falsely argued that these justices had been selected in en bloc rather than separate elections.
7 6
Wojciech Sadurski, How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding
(Sydney Law School Research Paper No. 18/01, 2018), https://ssrn.com/abstract=3103491.
7 7
Taylor, supra note 4.
Comparative court-packing 17
previous two strategies, which relied on quantitative changes, the replacement of sitting
judges changes the composition of the court in qualitative terms. By swapping
judges, political leaders not only select their nominees for the court but also get rid of
"disobedient" judges. The swapping of judges can be achieved through a plethora of
various techniques ranging from abusive impeachment and disciplining of judges to
forced resignations, golden parachutes, and premature appointments. For the sake of
complexity, we must also include inherently reprehensible techniques such as violent
attacks against judges.
a) Introduction or reduction of a mandatory retirement age
One of the most common and most frequently implemented techniques which allowed
the executive power to get rid of recalcitrant judges and fill the empty seats with their
own nominees in recent decades is the legislative shortening of the term of office. This
technique has several variations.
Many European jurisdictions, for example, have introduced a mandatory retirement
age for judges,7 8
which in turn offers governments an elegant, seemingly legitimate
method of shortening judicial terms of office. From this perspective, the
introduction or reduction of a mandatory retirement age is a wolf in sheep's clothing.
While ostensibly pursuing various laudable aims (such as increasing the efficiency of
the judiciary, creating working opportunities for young lawyers, cleaning the system
of communist-era judges who are allegedly discredited by service for the previous regime,
etc.), such legislation leads to large-scale shortening of the term of office of hundreds
of judges and allows the executive to pack the courts, especially the apex courts,
where older judges naturally sit in higher numbers.
A n example of such a step is Orban's reform of 2012 which reduced the mandatory
retirement age of Hungarian judges from seventy to sixty-two years.7 9
According
to available sources, this step allowed Orban to free 274 judicial positions, mostly at
higher courts.8 0
The Court of Justice of the European Union (CJEU) reviewed the reform
and found it to be in violation of EU law.8 1
However, the CJEU's judgment arrived
too late, only once the targeted judges had already been removed from office.8 2
The
European institutions learned their lesson from the Hungarian case and reacted much
faster when Jaroslaw Kaczynski attempted to adopt a similar reform in 2017, reducing
the retirement age for Polish judges from seventy to sixty-five.8 3
The European
Commission immediately initiated infringement proceedings before the CJEU, which
first issued an order suspending the application of the domestic law in question,8 4
and
7 8
M A R I A POPOVA, POLITICIZED JUSTICE IN EMERGING DEMOCRACIES (2012).
7 9
Tomas Gyulavari & Nikolett H6s, Retirement of Hungarian Judges, Age Discrimination and Judicial
Independence: A Tale of Two Courts, 42 INDUS. L.J. 289 (2013); Uladzislau Belavusau, On Age Discrimination
and Beating Dead Dogs: Commission v. Hungary, 50 COMMON MKT. L. REV. 1145 (2013).
8 ( 1
Gabor Halmai, The Early Retirement Age of the Hungarian Judges, in EU LAW STORIES: CONTEXTUAL AND CRITICAL
HISTORIES OF EUROPEAN JURISPRUDENCE 471, 4 8 2 - 3 , 4 8 6 - 8 (Fernanda Nicola & Bill Davies eds., 2017).
81
See further Case C-286/12, Eur. Comm'n v. Hungary, ECLI:EU:C:2012:687 (Nov. 6, 2012).
8 2
Halmai, supra note 80.
8 3
Zoll & Wortham, supra note 66; Sadurski, supra note 11.
84
See further Case C-619/18, Eur. Comm'n v. Poland, ECLI:EU:C:2019:531 (June 24, 2019).
18 I-CON (2023), 1-47 Articles
subsequently found Kaczynski's reform to be in violation of EU law.8 5
This prompt reaction
helped to prevent the premature retirement of at least some Polish judges8 6
and, most importantly, restored the President of the Polish Supreme Court, Malgorzata
Gersdorf, to her position.
However, neither Orban nor Kaczynski invented this technique. It was used as early
as in 19 7 7 in Bangladesh, when an ordinance was passed bringing the retirement age
for judges down from sixty-five to sixty-two years with immediate effect, which led to
the instant removal of several justices.8 7
More recently, in 2019, Bolsonaro's administration
tabled a proposal for lowering the retirement age for judges, with a view to
providing new nominations to the Brazilian Supreme Court.8 8
So it has become a truly
global phenomenon.
b) The removal of life tenure or shortening the limited term
A variation on this technique is the removal of life tenure, which introduces a mandatory
retirement age for judges in those systems that have not previously recognized
it. Such reform may be legitimate, but if it is adopted abruptly without any temporary
provisions for sitting judges, its effect is essentially the same as the reduction of the
retirement age. On the other hand, an example of an obviously legitimate abolition of
life tenures is the British Judicial Pensions Act of 1959, which introduced a mandatory
retirement age for judges (seventy-five years), but targeted only newly appointed
judges—the last judge serving under life tenure was Lord Denning, who resigned from
his post in 1982 at the age of eighty-three.8 9
For the sake of completeness, in those
jurisdictions where judges are appointed for a limited term, it is enough to shorten this
term. Given that in most countries judges of general courts enjoy either life tenure or
tenure until they reach the mandatory retirement age, this technique would be applicable
primarily to judges of constitutional tribunals or of special courts, who are
typically appointed for only a limited period.
c) Vetting
A different technique that also targets a large number of judges is vetting, which
occurs typically in countries undergoing regime transition (i.e. the vetting of judges
85
See further id. (in relation to the Supreme Court); Case C-192/18, Eur. Comm'n v. Poland,
ECLI:EU:C:2019:924 (Nov. 5, 2019) (in relation to general courts' judges).
8 6
Petra Bard & A n n a Sledzinska-Simon, On the Principle of Irremovability of Judges Beyond Age Discrimination:
Commission v. Poland, 57 COMMON MKT. L. REV. 1555 (2020).
8 7
Shimon Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in JUDICIAL
INDEPENDENCE: THE CONTEMPORARY DEBATE 590, 607 (Shimon Shetreet & Jules Deschenes eds., 1985).
8 8
Katya Kozicki & Rick Pianaro, From Hardball to Packing the Court: "PEC do Pyjama" and the Attempt to
Attack the Brazilian Supreme Court, in DEMOCRACY 2020: ASSESSING CONSTITUTIONAL DECAY, BREAKDOWN, AND
RENEWAL WORLDWIDE 59 (Tom Gerald Daly & Wojciech Sadurski eds., 2020), www.iacl-democracy-2020.
org/ebook.
8 9
Clare Dyer, Lord Denning, Controversial "People's Judge," Dies Aged 100, GUARDIAN (Mar. 6, 1999), www.
theguardian.com/uk/1999/mar/06/claredyerl. We are not saying though that only this type of abolition
of life tenures is legitimate. A staggered system when sitting judges leave the bench gradually in
future without the guarantee to stay for life might work too.
Comparative court-packing 19
for their participation in and allegiance to the previous regime) as a part of lustration
processes.9 0
The transitional vetting procedures targeting judges are largely perceived
as legitimate, even by the international community.9 1
A typical example of such vetting
was forcing all judges from the former GDR to reapply for their jobs after the reunification
of Germany9 2
and the Czech Lustration Law.9 3
A newer and more problematic
example of vetting is the Ukrainian Lustration Act, adopted after the fall of Viktor
Yanukovych's regime.9 4
A n obvious case of lustration legislation being misused to get
rid of recalcitrant judges well after the fall of a totalitarian regime is the Macedonian
case of the removal of Constitutional Court chief justice Trendafil Ivanovski.9 5
Some literature,9 6
especially from post-communist countries, suggests that in states
that failed to vet their judges for pragmatic reasons (too few judges overall, functioning
courts needed to help with the transition, etc.), lustration keeps reemerging as a wild
card used by politicians (e.g. in Poland and Slovakia) to damage public confidence in
the courts and to delegitimize them.9 7
The assessment of whether the use of lustration
and vetting amounts to court-packing is thus extremely difficult and requires
careful sequencing and contextual reading of every case. The very same observation
is valid for any other transitioning technique such as the retention of judges or their
re-appointment after the fall of a non-democratic regime.9 8
d) Abusive disciplining
A more individualized type of swapping strategy is the abusive disciplining of judges
or the threat thereof. Such purges of judges appear mostly in relation to successful
or unsuccessful coups d'etat. In other words, political leaders choose to punish
judges by means of disciplinary proceedings when they feel threatened by their
decisions.9 9
While typical of semi-authoritarian and authoritarian regime leaders,
9 0
Robertson, supra note 12; Neil Siegel, The Anti-Constitutionality of Court-Packing, BALKANIZATION (Mar. 26,
2019), https://balkin.blogspot .com/2019/03/the-anti-constitutionality-of-court_36.html.
1)1
See Venice Comm'n, Final Opinion on the Law on Government Cleansing (Lustration Law) of Ukraine 0une
19, 2015), https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2015)012-e;
Polyakh&Ors. v.Ukraine, App.No. 58812/15,Eur. Ct.H.R.,https://hudoc.echr.coe.int/fre?i=001-196607;
Konstantsin Dzehtsiarou, Lustration in Ukraine: Political Cleansing or a Tool of Revenge?, VERFASSUNGSBLOG 0une
26, 2015), https://verfassungsblog.de/lustration-in-ukraine-political-cleansing-or-a-tool-of-revenge/.
9 2
Blankenburg, supra note 14.
9 3
Kosař & Šipulová, supra note 13.
9 4
Yuliya Zabyelina, Lustration Beyond Decommunization: Responding to the Crimes of the Powerful in PostEuromaidan
Ukraine, 6 STATE CRIME J. 55 (2017).
95
See further Ivanovski v. Macedonia, App. No. 29908/11, Eur. Ct. H.R., https://hudoc.echr.coe.int/
fre?i=001-160219.
9 6
David Kosař, The Least Accountable Branch, 11 INT'LJ. CONST. L. 234, 250-5 (2013); Kosař & Šipulová, supra
note 13.
9 7
Kosař, supra note 9 3.
9 8
Donald P. Kommers, Autonomy Versus Accountability: The German Judiciary, in JUDICIAL INDEPENDENCE
IN THE A G E OF DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 131, 1 3 2 - 3 (Peter H. Russell &
David M . O'Brian eds., 2011); DAVID KOSAŘ, PERILS OF JUDICIAL SELF-GOVERNMENT IN TRANSITIONAL SOCIETIES
(2016).
9 9
Generally, abusive disciplining might lead to various sanctions against a judge, including reprimand,
salary deductions, transfer to a different court, and removal.
20 í « C 0 N (2023), 1-47 Articles
abusive disciplining was also frequently employed by young and backsliding European
democracies. Selective disciplining was widespread in Slovakia in the 2010s.1 0 0
The most extreme example is the widespread abuse of disciplinary proceedings by
the Polish government since 2 0 1 7 . 1 0 1
The troubling aspect of Kaczynski's employment
of disciplinary proceedings against judges who opposed his judicial reforms is
that he uses the newly established disciplinary chamber of the Supreme Court, packed
by judges appointed by the Law and Justice government. The archetype of intimidation
of judges by the government is the case of Waldemar Zurek, a spokesperson for
the former National Council of the Judiciary, who faced disciplinary proceedings because,
after his transfer to a newly established section of the court which he understood
as a personal vendetta, he refused to continue judging.1 0 2
In a different case,
judge Dorota Lutostanska faced disciplinary proceedings after she appeared at the celebration
of 100 years of Polish independence wearing a T-shirt with the inscription
"Constitution." The case of another Polish judge, Alina Czubieniak, shook the judicial
ranks even more profoundly. Czubieniak faced disciplinary prosecution after she had
issued a decision that a mentally disabled man, charged with the harassment of a
nine-year-old girl, had not been secured the right to a fair trial.1 0 3
Polish misuse of
disciplinary proceedings went so far that a couple of judges were subjected to disciplinary
proceedings for sending a preliminary question to the CJEU.1 0 4
Similar threats of
abusive disciplining of judges exist also in Romania.1 0 5
e) Abusive impeachment
A variation on disciplinary proceedings is abusive impeachment, most frequently
used in Latin America. For example, in Bolivia the 1992 impeachment of several
Constitutional Tribunal justices was a direct retaliation against the Tribunal justices
who dared to rule against the President's attempt to be re-elected for a third consecutive
term of office.1 0 6
Similarly, Venezuelan President Hugo Chavez repeatedly used
1 0
Kosař, supra note 96.
11
Katarzyna Gajda-Roszczynialska & Krystian Markiewicz, Disciplinary Proceedings as an Instrument for
Breaking the Rule of Law in Poland, 12 HAGUE J. RULEL. 451 (2020).
12
See Žurek v. Poland, App. No. 39650/18, Eur. Ct. H.R. (pending).
13
Piotr Mikuli, Attacking Judicial Independence Through New "Disciplinary" Procedures in Poland, I'CONNECT
BLOG (Apr. 9, 2019), www.iconnectblog.com/2019/04/attacking-judicial-independence-throughnew-disciplinary-procedures-in-poland;
Marek Strzelecki, Poland Starts to Discipline Judges Criticizing
Court Reforms, BLOOMBERG (Sept. 11, 2018), www.bloomberg.com/news/articles/2018-09-ll/
poland-starts-to-discipline-judges-who-criticized-court-reforms.
14
Laurent Pech & Patryk Wachowiec, 1460 Days Later: Rule of Law in Poland R.I.P. (Part I), VERFASSUNGSBLOG
(Jan. 13,2020), https://verfassungsblog.de/1460-days-later-rule-of-law-in-poland-r-i-p-part-i/; Laurent
Pech & Patryk Wachowiec, 1460 Days Later: Rule of Law in Poland R.I.P. (Part II), VERFASSUNGSBLOG (Jan.
15, 2020),https://verfassungsblog.de/1460-days-later-rule-of-law-in-poland-r-i-p-part-ii/. See also further
Joined Cases C-558/18 and C/563/18, Miasto Lowicz v. Prokurator Generalny, ECLI:EU:C:2020:234
(Mar. 26, 2020).
15
See Madalina Moraru & Raluca Bercea, The Asociafia "Forumul Judecätorilor din Romania" Case: The First
Episode of the Romanian Rule of Law Saga Before the Court of Justice of the European Union, 18 EUR. CONST. L.
REV. (2022).
1 6
Helmke, supra note 55.
Comparative court-packing 21
impeachment against recalcitrant judges.1 0 7
In May 2 0 2 1 , El Salvador's Legislative
Assembly, controlled by Nayib Bukele's party, removed five justices of the Supreme
Court's Constitutional Chamber on its very first day i n office.1 0 8
Examples of controversial
impeachment can also be found i n consolidated democracies, but they
date back several centuries like the 1804 attempt to impeach the US Supreme
Court Justice Samuel Chase for ideological reasons.1 0 9
However, abusive impeachment
has also been employed i n Asia, where President Duterte of the Philippines
used it i n 2018 to remove his vocal critic, Chief Justice Maria Lourdes Sereno.1 1 0
The Rajapaksa government in Sri Lanka did the same in 2013, when it successfully
impeached its Chief Justice.1 1 1
f) Abusive criminal prosecution
In some cases, political leaders go even further and, instead of disciplining, opt for
the abusive criminal prosecution of judges. This technique is, again, typical for
non-democratic regimes. For instance, the Czechoslovak communist regime successfully
prosecuted several judges for disregarding socialist legality i n their decision-making
and not following the orders of the Communist Party,1 1 2
primarily to
spread fear among judges and tame them. More recently, Hugo Chavez used criminal
prosecution against three judges of the Supreme Court of Venezuela to exert
pressure on them and to impress upon them how to decide on the applicability of a
referendum.1 1 3
Most frequently, however, the criminal prosecution technique has been abused
against judges in the aftermath of failed coups d'etat. A fitting example is the widespread
purge of thousands of judges following the 2016 unsuccessful coup i n
Turkey.1 1 4
In the wake of the coup, the Turkish government declared a state of emergency,
allowing the Council of Ministers to adopt various decree-laws.1 1 5
Dozens of
judges and judicial officials were arrested, and many of those judges still remain i n
detention. The European Court of Human Rights (ECtHR) found the detention of
Turkish judges to be in violation of the European Convention on Human Rights and
1 0 7
Taylor, supra note 4.
1 0 8
Jose Ignacio Hernandez, The Mass Removal of Constitutional Judges in El Salvador: A New Case of
Constitutional Authoritarian-Populism, I'CONNECT BLOG (May 14, 2021), www.iconnectblog.com/2021/05/
the-mass-removal-of-constitutional-judges-in-el-salvador-a-new-case-of-constitutional-authoritarian-
populism/.
1 ( 1 9
Adam A. Perlin, The Impeachment of Samuel Chase: Redefining Judicial Independence, 62 RUTGERS L . REV. 72 5
(2010).
1 1 0
A.F. Tissa Fernando, Procedure for Removal of Superior Court Judges in Sri Lanka and the Issue of "Quis
Custodiet Ipsos Custodes?," 39 Cm. L. BULL. 717 (2013).
1 1 1
David Steelman, Judicial Independence in a Democracy: Reflections on Impeachments in America and the
Philippines, 9 INT'L J. CT. ADMIN. 1 (2018).
1 1 2
Vorel et al., supra note 33.
1 1 3
Taylor, supra note 4.
1 1 4
Tank Olcay, Firing Bench-Mates: The Human Rights and Rule of Law Implications of the Turkish Constitutional
Court's Dismissal of Its Two Members. Case Note, 13 EUR. CONST. L. REV. 568 (2017).
115
See TURK. CONST. 1982, art. 121, para. 3 (setting out the authority to issue decree-laws in the state of
emergency follows).
22 I-CON (2023), 1-47 Articles
stressed that the state of emergency did not give the government carte blanche to undertake
arbitrary detentions and violations of human rights commitments.1 1 6
A second scenario in which political leaders often resort to abusive prosecution is
a retaliation against a particular decision, or a preemptive deterrence of judges. Such
examples abound all over the world. Take the trial of five Malay judges in 1988 for
making decisions against the interests of the standing government;1 1 7
the prosecution
in 2002 of Ukrainian judges who attempted to open a criminal investigation against
President Kuchma;1 1 8
Chavez's threat to prosecute Supreme Court justices of the electoral
chamber in 2 0 0 4 ; 1 1 9
or the case of the President of the Polish Constitutional
Tribunal, who was threatened with criminal prosecution after he refused to accept the
additional three justices chosen by the Law and Justice government whose nomination
the Tribunal had found to be unconstitutional.1 2 0
g) Abusive dismissal
Another swapping technique is the abusive dismissal of a judge using a procedure
different from impeachment, criminal prosecution, or disciplinary proceedings. Such
non-standard removal is unacceptable in democratic countries, and we can find
examples of its use mainly in authoritarian and totalitarian regimes. For instance, in
1969 the Egyptian government dismissed a large number of judges for their refusal
to join the ruling political party by means of a combination of the removal of judges
and the reorganization of the judicial system, leading to the dismissal of 189 judges
in a reappointment process.1 2 1
Other examples of arbitrary dismissals can be found
especially in the Americas.1 2 2
In 1999 Hugo Chavez removed 190 judges for various
reasons.1 2 3
Only five years later, he also removed the vice-president of Venezuela's
Supreme Court.1 2 4
In 2005, the interim Haitian President, Boniface Alexandre, formally
"retired" five Supreme Court judges before any had completed their ten-year
116
See further Hakan Ba§ v. Turkey, App. No. 66448/17, Eur. Ct. H. R, https://hudoc.echr.coe.int/
fre?i=001-201761.
1 1 7
Geoffrey Robertson, Malaysia: Justice Hangs in theBalance, CTR. FOR INDEPENDENCE JUDGES & LAWYERS, NO. 22, at
8 (Oct. 1988),www.icj.org/wp-content/uploads/2013/10/CIJL-Bulletin-22-1988-eng.pdf.
1 1 8
IrynaBudz, What Prevents Ukrainian Judiciary From Becoming Truly Effective and Independent?, VOX UKRAINE
(July 24, 2019), https://voxukraine.org/en/what-prevents-ukrainian-judiciary-from-becoming-truly-
effective-and-independent/.
1 1 9
Taylor, supra note 4.
1 2 ( 1
Dariusz Mazur & Waldemar Zurek, So-called "Good Change" in the Polish System of the Administration of
Justice, RULEOFLAW.PL (Oct. 6, 2017), https://ruleoflaw.pl/so-called-good-change-in-the-polish-systemof-the-administration-of-j
ustice/.
1 2 1
See Adel Omar Shefil, Attacks on the Judiciary: Judicial Independence Reality of Fallacy, 6 Y.B. ISLAMIC & MIDDLE
E. L. at xxxi (1999-2000); Shams A l Din A l Hajjaji, Form of Reform: Judicial Reform in Egypt: Lesson
from the Developed Countries (2016) (unpublished Ph.D. dissertation, Univ. Cat, Berkley) (on file with
authors).
1 2 2
Anibal Perez-Lifiän, Barry Ames, & Mitchell A. Seligson, Strategy, Careers, and Judicial Decisions: Lessons
from the Bolivian Courts, 68 J. POL. 284 (2006); Castagnola, supra note 19.
1 2 3
Taylor, supra note 4.
124
Id.
Comparative court-packing 23
terms.1 2 5
In 2014, the ruling coalition of President Gutierrez in Ecuador by a simple
majority in Congress removed all thirty-one justices of the Supreme Court.1 2 6
The recent development in Turkey demonstrates that abusive removal of judges can
also be found within the Council of Europe. The very first decree adopted by Recep
Tayyip Erdogan's regime in the state of emergency in 2016 allowed the Constitutional
Court to dismiss any of its members for being linked to a terrorist group.1 2 7
The interpretation
of the provision's constitutionality raises some controversy.1 2 8
However,
the Constitutional Court arbitrarily dismissed two judges, Alparslan Altan and Erdal
Tercan, for their alleged links to a terrorist organization and barred them from the judicial
profession.1 2 9
h) Forced resignation
In contrast, forced resignation belongs to swapping techniques which are more difficult
to discern. It again typically occurs Latin America, especially in unstable political
regimes where the political leaders feel threatened by the rising opposition.1 3 0
For instance, in 2004, Hugo Chavez forced three justices of the electoral panel of the
Venezuelan Supreme Court to resign, threatening them with removal or criminal prosecution.1
3 1
A year later, in 2005, Evo Morales forced most of the Bolivian Supreme and
Constitutional court judges to resign. A similar technique was used in Argentina.1 3 2
Another famous example comes from Bolivia, where President Melgarejo stopped
paying the salaries of Supreme Court justices for so long that he forced the whole
Supreme Court, apart from its chief justice, to resign.1 3 3
Political leaders may use various
threats to force the resignation, such as blackmailing judges with threats against
their family members, cutting salaries, retirement benefits or other monetary perks, or
interfering with their property rights.
i) Golden parachute
The executive sometimes also tries to use the carrot rather than the stick to get the
desired result. A typical example is "voluntary" resignation triggered by offering judges
a "golden parachute." Such a parachute may include promotion to a higher court, to
executive office, or even to an international organization. Sometimes this may take
the form of another safe job or even financial benefits. Political leaders may also attempt
to motivate judges to resign prematurely by the promise of higher pensions. It
is simply the carrot side of the stick of forced early retirement by law. This technique
1 2 5
Kevin Costello, Supreme Court Politics and Life Tenure: A Comparative Inquiry, 71 HASTINGS L.J. 1153, 1166
(2020).
1 2 6
Castagnola, supra note 19.
1 2 7
Decree-Law no. 667 on Measures to be Taken under the State of Emergency (July 23, 2016) (Tur.).
1 2 8
Olcay, supra note 114.
129
Id.
1 3 0
Castagnola, supra note 19.
1 3 1
Taylor, supra note 4.
1 3 2
Castagnola, supra note 19.
1 3 3
GRETCHEN HELMKE & JULIO RIOS-FIGUEROA, COURTS IN LATIN AMERICA (2011).
24 í«CON (2023), 1-47 Articles
is again difficult to identify, but it has been successfully implemented in Argentina1 3 4
as well as in Poland.1 3 5
Examples are, however, easy to find in other regions too. In
1965, Arthur Goldberg resigned from the US Supreme Court and accepted President
Johnson's appointment as the Ambassador to the United Nations, vacating the seat for
Johnson's close friend Abe Fortas.1 3 6
The insidious character of this technique is that
the only safeguard against it is the moral integrity of the judges who are offered the
golden parachute.
j) Premature appointment
Another technique which does not rely on the resignation of judges yet still gives
the executive an opportunity to select its own candidate is premature appointment.
Some governments, aware that they may lose impending elections, attempt
to secure friendly, aligned courts by the premature appointment of new judges,
when judges whose mandate is soon to end are still in office (we call them "lame
duck judges").
A premature appointment was made, for instance, in Poland in 2015 when Civic
Platform government selected two Constitutional Tribunal justices to replace "lame
duck judges" whose mandates were to end only after the 2015 parliamentary election,
which Civic Platform eventually lost. This preemptive (and later confirmed as
unconstitutional1 3 7
) election of judges by the lame duck government was clearly
motivated by the fear of losing the elections and responded to growing public support
for the populist Law and Justice party. However, this strategy backfired badly.
Instead of skewing the composition of the Constitutional Tribunal, this "original
s i n " 1 3 8
instigated (and also partly legitimized) Kaczynski's vendetta against Civic
Platform after the elections.1 3 9
That said, the illegitimate nature of this technique
is often difficult to identify due to the existence of constitutional conventions,
various unwritten norms and practices, and gentlemen's agreements that
determine how far in advance new judges can be selected to replace "lame duck
judges."
1 3 4
Castagnola, supra note 19.
1 3 5
Ewa Siedlecka, Sgdzia Andrzej Wróbel odchodzi z Trybunalu Konstytucyjnego: PiS obsadzi kolejné miejsce,
GAZETTA WYBORCZA (Jan. 25, 2017), http://wyborcza.p1/7,75398,21289466,sedzia-andrzej-wrobelodchodzi-z-trybunalu-konstytucyjnego.html.
Note that the resignation of Andrzej Wróbel, Justice of the
Polish Constitutional Tribunal, in January 2017 allowed the governing "Law and Justice" party to appoint
its eighth Justice (a swing justice in US parlance, see Enns & Wohlfarth, supra note 26) and gain the
majority on the fifteen-member Tribunal.
1 3 6
David A. Kaplan, The Reagan Court: Child of Lyndon Johnson?, N.Y. TIMES (Sep. 4, 1989), www.nytimes.
com/1989/09/04/opinion/the-reagan-court-child-of-lyndon-j ohnson .html.
1 3 7
Polish Const. Tribunal, Case no. 34/14 (Dec. 3, 2015).
1 3 8
Lech Garlicki, Disabling the Constitutional Court in Poland, in TRANSFORMATION OF LAW SYSTEMS IN CENTRAL,
EASTERN AND SOUTHEASTERN EUROPE IN 1989-2015 at 63, 65-6 (Andrzej Szmyt & Boguslaw Banaszak eds.,
2016). See also Aleksandra Gliszczyňska-Grabias & Wojciech Sadurski, The Judgment That Wasn't (But
Which Nearly Brought Poland to a Standstill), 17EUR. CONST.L.REV. 130(2021).
1 3 9
We discuss Kaczynski's vendetta under the thwarting of the selection process in Section 3.2 above.
Comparative court-packing 2 5
k) Use of violence and physical attacks
The crudest technique forcing judges to resign is (the threat of) violence. Explicit violence
therefore typically follows a court decision that directly threatens the executive or
the leading political party. Several regimes in Africa and Latin America have employed
this technique, particularly as retaliation for the prosecution of senior executives or
members of the police and militia. A fitting example is the assassination of the vice
president of the Constitutional Council of Senegal, Babacar Seye, during the first year
of the court's activity. He was shot when the Constitutional Council was about to
verify the final results of the parliamentary elections.1 4 0
Similarly, Idi Amin's regime
kidnapped and assassinated the first Chief Justice of the Ugandan Supreme Court,
Benedict K i w a n u k a . 1 4 1
Violent attacks against judges took place also in Madagascar
following the review of the 2001 presidential elections.1 4 2
There are many similar
examples in the histories of Guatemala, El Salvador, and Colombia, whose judiciary
was riddled with numerous judicial murders between 1979 and 1 9 9 1 . 1 4 3
Judges typically face violence also during constitutional revolutions and regime
change. For example, the fall of the dictatorship of Fulgencio Batista in Cuba and the
rise to power of Fidel Castro in 19 5 9 led to the almost complete renewal of the judicial
ranks, as many upper middle-class judges fled into exile even before the revolution.
This allowed Castro to secure a completely loyal Supreme Court very soon after he
assumed power.1 4 4
4. Can court-packing be legitimate?
What makes court-packing so tempting for political leaders? The plethora of examples
in the previous section have four common determinants. First, compared to other courtcurbing
measures, court-packing often does not incapacitate the courts, but turns them
into a powerful weapon. This was well illustrated by empirical research which showed
how consistently the packed Polish Constitutional Tribunal supported Kaczynski's
policies1 4 5
and how the US Supreme Court polarized towards conservativism.1 4 6
Second,
court-packing has immediate results. Political leaders who decide to pack the courts
swiftly achieve a friendly majority and a decisive shift in the ideological inclination of
the packed court. It is one of the few legal techniques which can lead to an immediate
" Mariana Llanos et al., Informal Interference in the Judiciary in New Democracies: A Comparison of Six African
and Latin American Cases, 2 3 DEMOCRATIZATION 1 2 3 6 ( 2 0 1 5 ) .
1
Remembering Benedicto Kiwanuka, JUDICIARY INSIDER, N O . 1 1 (Sept. 2 0 1 8 ) , http://judiciary.go.ug/files/
publications/Judiciarylnsiderlssuel lwebversion.pdf.
2
Llanos, supra note 1 4 0 .
3
INT'L COMM'N JURISTS, JUSTICE FOR JUSTICE: VIOLENCE AGAINST JUDGES AND LAWYERS IN COLOMBIA 1 9 7 9 - 1 9 9 1 0uly
1 9 9 2 ) , www.icj. org/wp-content/uploads/2013/05/ Colombia-violence-against-j udges-and-lawyers-
thematic-report-1992-eng.pdf.
4
Nuno Garoupa & Maria A . Maldonado, The Judiciary in Political Transitions: The Critical Role of U.S.
Constitutionalism in Latin America, 1 9 CARDOZO J. INT'L & COMP. L. 5 9 3 ( 2 0 1 1 ) .
5
Sadurski, supra note 1 1 .
6
RyanDoerfler & Samuel Moyn, Democratizing the Supreme Court, 1 0 9 CAL. L. REV. 1 ( 2 0 2 0 ) . See also Varol,
Pellegrina, & Garoupa, supra note 5 (on Turkey).
26 I-CON (2023), 1-47 Articles
change of the bench. Third, it is difficult to reverse, as newly appointed judges are
protected by judicial independence. We have repeatedly seen how difficult it is to re-establish
removed judges in their office, even under pressure from international and supranational
courts.1 4 7
For instance, despite the favorable judgment of the CJEU, which
found the abrupt lowering of the mandatory retirement age for Hungarian judges to be
in violation of EU law,1 4 8
the dismissed judges were not allowed to re-join the judicial
ranks immediately and they could not be reinstated in their previous leading administrative
positions (such as presidents and vice-presidents of courts).1 4 9
Finally, we argue
that court-packing is actually less conspicuous than court-curbing practices, as many
of its techniques are not easily recognizable or rely on norms of forbearance.1 5 0
But what makes court-packing a particularly interesting phenomenon to study is
the thin line which divides legitimate and illegitimate reconstructions of the bench.
History has shown us that court enlargement or large-scale judicial purges might
sometimes be justified, or even necessary, and may increase rather than reduce courts'
legitimacy. For instance, no one really questioned the legitimacy of purges within the
judiciaries in CEE after the fall of the communist regimes. Scholars actually more often
lamented the fact that these purges should have been wider.1 5 1
Increasing and reducing
the size of courts in the wake of the end of authoritarian and military regimes
took place also in Latin America, and some of these examples of court-packing were
also not perceived as illegitimate, at least initially.1 5 2
Yet, how can one distinguish between
the legitimate and illegitimate examples of court-packing? A n d can changes in
courts' composition that qualify as court-packing ever be legitimate?
The current debate surrounding the calls for enlargement of the US Supreme Court
give us a good example of how complicated and fragmented the underlying normative
understanding of court-packing is. Since World War II, court-packing has not
been debated in any consolidated democracy with such a level of urgency1 5 3
and with
so many strong voices advocating its implementation as in the United States in the
early 2020s. The passing of Ruth Bader Ginsburg gave President Donald Trump a rare
window of opportunity to significantly strengthen his conservative majority at the
Supreme Court just a few weeks before the presidential elections which he eventually
lost. Proponents of court-packing not only argue for a politically balanced court, but
also cite a string of Supreme Court case law arguing that its very legitimacy is at risk,
as it is too influenced by partisan politics.1 5 4
1 4 7
Sometimes, it works though. For instance, judge of the Ukrainian Supreme Court Oleksandr Volkov
was reinstated after the ECtHR's judgment in Volkov v. Ukraine. Oleksandr Volkov v. Ukraine, App. No.
21722/11 (Jan. 9, 2013), https://hudoc.echr.coe.int/fre?i=001-115871.
1 4 8
Case C-286/12, Eur. Comm'n v. Hungary, ECLI:EU:C:2012:687 (Nov. 6, 2012).
1 4 9
Halmai, supra note 80.
1 5 1 1
STEVEN LEVITSKY & DANIEL ZIBLATT, HOW DEMOCRACIES DIE (2018).
1 5 1
See supra text accompanying notes 9 0 - 8 .
1 5 2
Daly, supra note 10.
1 5 3
One of the rare occasions was the attempt by German Chancellor Adenauer to force Federal Constitutional
Court justices to resign by reason of a conflict over joining the European Defence Community in 1953.
Georg Vanberg, Establishing Judicial Independence in West Germany: The impact of Opinion Leadership on the
Separation of Powers, 32 COMP. POL. 333, 345 (2000).
1 5 4
Doerfler & Moyn, supra note 147. See also Richard Mailey, Court-Packing in 2021: Pathways to Democratic
Legitimacy, 44 SEATTLE U. L. REV. 3 5 (2020).
Comparative court-packing 27
But voices calling for justified, "good" court-packing resonate also in Europe as a response
to illiberal attacks on the Central and Eastern European (CEE) judiciaries. Even
otherwise moderate scholars who believe that responding to the violation of democratic
norms with another violation leads to erosion of the entire system now argue that there
are rare occasions "when the only way to save the democracy is to fight fire with fire."1 5 5
However, the current debate is too heavily influenced by the American scholarship
that responds to a very specific US context. The US Supreme Court Justices enjoy life
tenures with no mandatory retirement age, which gives politicians a rather small
window of opportunity to change the Court's composition and bring it closer to the
electoral majorities. This unique feature, coupled with strong judicial review and an
unpredictable practice of strategic resignations,1 5 6
significantly raises the stakes and
attractiveness of court-packing. Moreover, the polarization of the Supreme Court in
recent years has concentrated the previously diffused debate and intertwined views on
strong judicial review with those on the legitimacy of court-packing.1 5 7
In other words,
traditional critics of judicial review have been transformed into strong proponents of
ideologically motivated court-packing, aiming to control the Supreme Court instead
of curtailing its institutional powers.1 5 8
Many US proponents in fact openly rationalize
the enlargement of the Supreme Court as a means to "prevent the erosion of democracy,"1
5 9
by changing the ideological oversight of the Supreme Court which "has been
complicit in and partially responsible for the degradation of American democracy."1 6 0
These unique considerations, however, do not translate well to other regions. This
is particularly visible in Europe where scholars theorize about how to unpack and
legitimize the courts once Orban's and Kaczynski's rule is over.1 6 1
These debates are
not very often framed as a court-packing problem, since these leaders merged several
other methods of controlling the courts. However, it is the court-packing and
its eventual undoing that troubles legal and political scholars who theorize about
1 5 5
Jan Werner-Müller, Democrats Must Finally Play Hardball, PROJECT-SYNDICATE (Sept. 25, 2020), www.
project-syndicate.org/commentary/democrats-must-fight-on-ruth-bader-ginsburg-replacernent-by-janwerner-mueller-2
02 0-09.
1 5 6
Tomothy M . Hagle, Strategic Retirements: A Political Model of Turnover on the United States Supreme
Court, 15 POL. BEHAVIOUR 25 (1993). For a comparative analysis of strategic resignations, see Castagnola,
supra note 19.
1 5 7
William G. Ross, Presidential Commission on the Supreme Court of the United States, Testimony of William
G. Ross, WHITE HOUSE 0une 20, 2021), www.whitehouse.gov/wp-content/uploads/2021/08/Professor-
William-G.-Ross.pdf.
1 5 8
Ross, supra note 158; Samuel Moyn, Presidential Commission on the Supreme Court of the United States,
WHITE HOUSE 2 (June 30, 2021), www.whitehouse.gov/wp-content/uploads/2021/06/Moyn-Testimony.
pdf; Neil Siegel, Presidential Commission on the Supreme Court of the United States, WHITE HOUSE 17-20 0uly
20, 2021), www.whitehouse.gov/wp-content/uploads/2021/07/Siegel-Testimony.pdf; Daniel Epps,
Presidential Commission on the Supreme Court of the United States, WHITE HOUSE 1-11 (July 20, 2021),
https://ssrn.com/abstract=3888490.
159
Supra note 2, at 77.
1 6 0
Michael J. Klarman, Presidential Comm'n on the Sup. Ct. U.S., Court Expansion and Other Changes
to the Court's Composition, WHITE HOUSE 12-13 (July 20, 2021), www.whitehouse.gov/wp-content/
uploads/2021/0 7/K1arman-Testimony.pdf.
1 6 1
Debate: Restoring Constitutionalism, VERFASSUNGSBLOG, https://verfassungsblog.de/category/debates/
restoring-constitutionalism/ (last visited Jan. 23, 2023).
28 I-CON (2023), 1 - 4 7 Articles
future development once the current oppositions win the elections i n Hungary and
Poland.1 6 2
Can the future governing majorities legitimately resort to court-packing i n
order to reduce the effects of previous court-packing? A n d , if so, which court-packing
strategy would be acceptable? Are some court-packing techniques more legitimate
than others?
In order to answer these questions, we need to have a better normative theory of
court-packing and its objectives, which contains a clear benchmark that would justify
why certain strategies and techniques can by way of exception be seen as legitimate
while others are not.
In the following sections, we therefore first discuss the meta-goals of court-packing
typically invoked by existing scholarship, and reject them as too vague and contradictory.
Instead, using the comparative advantage of mapping various court-packing examples
all over the world, we propose to proceed in two steps. First, we suggest abandoning the
noble but vague meta-goals that block the debate, and instead focusing on pragmatic
rationales for court-packing invoked i n practice. Second, we divide the question when
there is a "just cause" for court-packing from the "means question," that is how to execute
just court-packing to keep it legitimate. By doing so, we propose a prospective midlevel
theory of legitimate court-packing resting on two dimensions: when court-packing
is pursuing a legitimate aim (ius ad bellum of court-packing) and how to execute it legitimately
(ius in hello of court-packing). We furthermore stress that even legitimate courtpacking
still posits significant dangers. To tackle these dangers, we propose a legitimacy
algorithm reflecting the cost-benefit analysis of individual court-packing techniques,
conditioning them by stringent deliberative and procedural criteria.
4.1. From meta-goals to two dimensions of court-packing legitimacy
The rich scholarship and debates on court-packing frequently engage with the question
of legitimacy, typically invoking the following meta-goals that court-packing aims
to meet: the rule of law (including judicial independence),1 6 3
separation of powers,1 6 4
democracy,1 6 5
social responsiveness,1 6 6
public confidence i n the courts,1 6 7
and the
well-functioning of the judiciary.1 6 8
162
Id. See also Armin von Bogdandy & Luke Dimitrios Spieker, Restoring the Rule of Law Through Criminal
Responsibility, VERFASSUNGSBLOG (Dec. 10, 2021), https://verfassungsblog.de/restoring-the-rule-
of-law-through-criminal-responsibility/.
1 6 3
Charles G. Geyh, Rescuing Judicial Accountability from the Realm of Political Rhetoric, 56 CASE W . RES. L. REV.
9 1 1 , 9 1 6 ( 2 0 0 6 ) .
1 6 4
Braver, supra note 8.
1 6 5
Michael J. Klarman, Foreword: The Degradation of American Democracy—and the Court, 134 HARV. L. REV. 1,
1 (2020); Klarman, supra note 161.
1 6 6
Owen M . Fiss, The Right Degree of Independence, in TRANSITION TO DEMOCRACY IN LATIN AMERICA: THE ROLE OF THE
JUDICIARY 55, 56-8 (Irwin P. Stotzky ed., 199 3). On the general idea of "responsive law," see PHILIPPE NONET
AND PHILIP SELZNICK, LAW & SOCIETY IN TRANSITION: TOWARD RESPONSIVE LAW 7 3 - 1 1 4 (2001).
1 6 7
Caldeira, supra note 30; Cushman, supra note 30; Alex Badas, Policy Disagreement and Judicial Legitimacy:
evidence from the 1937 Court-Packing Plan, 48 J. LEGAL STUD. 377 (2020); Thomas M . Keck, Court-Packing
and Democratic Erosion, in DEMOCRATIC RESILIENCE: C A N THE UNITED STATES WITHSTAND RISING POLARIZATION? 141
(Suzanne Mettler, Robert Lieberman, & Ken Roberts eds., 2022).
1 6 8
John Ferejohn & Larry Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint,
77 N . Y . U . L. REV. 962, 9 6 3 - 4 (2002).
Comparative court-packing 29
However, all these meta-goals are notoriously ambiguous and often contested
concepts, whose relationship to court-packing is empirically unclear and at best
disputed. As a result, all of these meta-goals are typically invoked by both the
supporters and the critics of court-packing. This is most visible in the case of the rule
of law, which is used by opponents of court-packing primarily to undermine both the
legitimacy and legality of bench alterations.1 6 9
According to some scholars, the very
idea of court-packing contravenes the spirit of the rule of l a w 1 7 0
and its individual
principles—including judicial independence, which is inevitably in tension with the
concept of court-packing.1 7 1
The rule of law itself is nevertheless a loaded and very
context-dependent term that can hardly be reduced to questions of legality. After all, it
is the violation of the rule of law norms which ironically justifies many calls for "good
court-packing"1 7 2
in transitional settings or, in European liberal discourse, calls for
unpacking post-Orban and post-Kaczynski judiciaries. Similar considerations apply
to judicial independence as one of the rule of law principles, as it is invoked by anticourt-packing1
7 3
as well as pro-court-packing1 7 4
camps. The invocations of the rule of
law and judicial independence thus gridlock the debate on legitimate court-packing.
The same problem permeates the invocation of the separation of powers. On the
one hand, there is a long tradition of rejecting court-packing as an attack on the separation
of powers,1 7 5
which clashes with the ability of the courts to serve as an effective
check against the executive and legislative power.1 7 6
On the other hand, the opposite
camp actually invokes court-packing as a constraint, arguing that it is judicial supremacy
that conflicts with the separation of powers principle.1 7 7
The reference to "democracy"
does not get us any further, as it is too dependent on differences between its
thick and thin understandings.
, l )
Christopher Kang, Perspectives on Supreme Court Reform, WHITE HOUSE 3 (July 20, 2021), www.whitehouse.
gov/wp-content/uploads/2021/07/Kang-Testimony.pdf; Klarman, supra note 161.
" Braver, supra note 8.
1
Barry Cushman, Court-Packing in Context, WHITE HOUSE 3 (July 20, 2021), www.whitehouse.gov/
wp-content/uploads/2021/10/Professor-Barry-Cushman.pdf; Jeff Sheshol, Supreme Power: Franklin
Roosevelt vs. the Supreme Court, WHITE HOUSE 3 (July 20, 2021), www.whitehouse.gov/wp-content/
uploads/2021/08/Jeff-Shesol-l.pdf; Ross, supra note 158; Noah Feldman, The Contemporary Debate
over Supreme Court Reform: Origins and Perspectives, WHITE HOUSE 2 (Jun. 30, 2021), www.whitehouse.
gov/ wp-content/uploads/2021 /06/Feldman-Presidential-Commission-6-2 5-21 .pdf; John Malcolm,
Perspectives on Court Reform, WHITE HOUSE 2 0uly 20, 2021), www.whitehouse.gov/wp-content/
uploads/2021/07/Malcolm-Testimony.pdf; Siegel, supra note 159.
2
PRESIDENTIAL COMM'N ON THE SUP. CT. UNITED STATES, supra note 2, at 75-6.
3
Cushman, supra note 172; Feldman, supra note 172; Ross, supra note 158.
4
Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 18, 27 (2019); Weill,
supra note 31; Thomas Keck, The Supreme Court Justices Control Whether Court-Packing Ever Happens,
W A S H . POST (NOV. 19, 2018), www.washingtonpost.com/outlook/2018/ll/19/supreme-courtjustices-control-whether-court-packing-ever-happens/;
Danielle Root & Sam Berger, Structural Reforms
to the Federal Judiciary, Cm. A M . PROGRESS (May 8, 2019), www.americanprogress.org/issues/courts/
reports/2019/05/08/469504/structural-reforms-federal-judiciary; Levy, supra note 53; Ashraf Ahmed,
A Theory of Constitutional Norms, 120 MICH. L. REV. 1361 (2022).
5
Ever since the refusal of FDR's plan in 193 7; Cushman, supra note 172.
6
Ross, supra note 158; Malcolm, supra note 172.
7
See the departmentalist scholarship discussed in Braver, supra note 8, at 2 791.
30 I-CON (2023), 1-47 Articles
Legitimate court-packing can also be presented as an example of good governance1
7 8
or a restoration of the ideological balance in the courts. The argument is particularly
frequent in bipartisan countries such as the United States, where proponents
of court-packing largely copy the arguments of critics of a strong constitutional review
and the alleged resulting democratic deficit.1 7 9
The threat of legitimate courtpacking,
according to some, helps to keep judges constrained so that they do not move
too far away from majority public opinion.1 8 0
Such threats thus may ensure socially responsive judicial review1 8 1
or the broader
goal of a well-functioning judiciary apt to provide timely and substantially just decision-making.
The social responsiveness of courts is, however, also vehemently
rejected as a form of politicization, tying courts too closely to the partisan politics and
preferences of the ruling majorities. This is particularly so in European countries,
which perceive the courts as a strictly legal and apolitical institution. The US discourse
is more fragmented.
Like social responsiveness, the restoration of public confidence often resonates in
the pro-court-packing camp. Nevertheless, the relationship between court-packing
and public confidence is also very hazy. Scholars disagree on the sensitivity of the
public to court-packing. Siegel, for example, conditions the public legitimacy of courts
by their visible independence from political branches of power,1 8 2
and Caldeira understood
the US Supreme Court as extraordinarily dependent on public confidence,
leading to strategic behavior by the justices.1 8 3
Feldman, on the other hand, perceives
public confidence as less fragile, arguing that the public actually cares and knows very
little about courts and that the law-politics dichotomy is merely a m y t h . 1 8 4
Empirical
evidence is similarly confusing. Calls for greater public confidence motivated the systemic
lustration of judges in 2014 in Ukraine, after the fall of Viktor Yanukovych's
regime.1 8 5
On the other side of the continuum, public polls clearly show a decline in
public confidence in the packed and rigged Polish courts post 2 0 1 7 . 1 8 6
In the United
States, public polls showed general support for delaying Bader Ginsburg's replacement
at the Supreme Court, but the polls in support of the Democrats in their court-packing
8
Siegel, supra note 159.
Aaron Belkin, Take Back the Court, WHITE HOUSE (Aug. 15, 2021), https://www.whitehouse.gov/
wp-content/uploads/2021/0 8/Aaron-Belkin.pdf.
!
" Denis Galligan, Principal Institutions and Mechanisms of Judicial Accountability, in COMPREHENSIVE LEGAL AND
JUDICIAL DEVELOPMENT: TOWARDS AN AGENDA FOR A JUST AND EQUITABLE SOCIETY IN THE 2 1ST CENTURY 31 (Rudolf V.
Van Puymbroeck eds., 2001). Cf. Mak, supra note 203, at 730, 734; Klarman, supra note 161; Kang,
supra note 170.
! 1
Letter from Rosalind Dixon to Bob Bauer and Cristina Rodriguez, Co-Chairs, Presidential Commission
on the Supreme Court of the United States 10-11 (June 25, 2021), www.whitehouse.gov/wp-content/
uploads/2 02 l/06/Dixon-Letter-SC-commission-June-25-final.pdf.
! 2
Siegel, supra note 159.
! 3
Gregory A. Caldeira, Neither the Purse, nor the Sword: Dynamics of Public Confidence in the Supreme Court,
80 A M . POL. SCI. REV. 1209 (1986).
! 4
James L. Gibson, Gregory A. Caldeira, & Vanessa A. Baird, On the Legitimacy of National High Courts, 92
A M . POL. SCI. REV. 343 (1998); Feldman, supra note 173.
! 5
Zabyelina, supra note 94.
! 6
FLASH EUROBAROMETER 489, PERCEIVED INDEPENDENCE OF THE NATIONAL JUSTICE SYSTEMS IN THE EU AMONG THE GENERAL
PUBLIC 0uly 2021), https://europa.eu/eurobarometer/surveys/detail/22 72.
Comparative court-packing 31
plans had mixed results, fueling worries that court-packing might erode public respect
for the Supreme Court.1 8 7
It is quite apparent that meta-goals of legitimate court-packing are not only vague,
difficult to define, and context-dependent, but also often contradictory. We therefore
move from the abstract level to more practical goals. Using the comparative advantage
of our broad conceptualization, we propose a prospective mid-level theory of legitimate
court-packing which allows us to create more general and clearer boundaries
of legitimate and illegitimate court-packing without losing sight of deep theoretical
debates.1 8 8
We build this mid-level theory of legitimate justifications of court-packing on the
following normative considerations. First, we argue against evaluation of courtpacking
legitimacy that would require an imputation of intent to political leaders, as
such a concept is inevitably based on subjective assumptions and could never aspire to
having general applicability.1 8 9
We argue that, irrespective of justifications and goals,
court-packing inherently triggers several dangers. We therefore conceptualize it as a
hardball technique that is problematic irrespective of whether the actors who implement
it are generally seen as the good or the bad guys.
Second, for similar reasons, we also oppose any evaluation of court-packing that
would base its legitimacy on the existence of other guarantees of judicial independence.
In other words, the level of judicial autonomy, self-governance, or judicial independence
cannot justify or retroactively legitimize court-packing as a practice.
Third, we also reject arguments for court-packing that rely merely on the legitimation
achieved in hindsight, as they necessarily raise the questions of who should be the
judge deciding whether the court-packing was legitimate, what the criteria of such assessment
would be, or how to undo court-packing once packed judges actually prove
to be loyal to their political nominators. Therefore, the subsequent behavior of packed
judges is important for the overall evaluation of the quality of justice, but it cannot in
itself justify court-packing as a policy.
Instead, we offer a forward-looking assessment and argue that while court-packing
is always problematic, in some exceptional instances it can be legitimate and justified.
This legitimacy rests on a set of stringent political criteria, such as democratic regime
change, proportional reaction to previous court-packing, or democratic deliberation
leading to multipartisan or expert consensus on the court-packing. Our conceptualization
of legitimate court-packing is therefore a normative one. Instead of looking
at formal rules or constitutional practices or conventions, which are necessarily
7
Ross, supra note 1 5 8 , at 6.
8
Here we rely on the theory of "incompletely theorized agreements" (associated with Cass Sunstein) and
on that of "overlapping consensus" (associated with John Rawls). See Cass R. Sunstein, Incompletely
Theorized Agreements, 1 0 8 HARV. L . REV. 1 7 3 3 , 1 7 3 9 - 4 0 ( 1 9 9 5 ) ; JOHN RAWLS, POLITICAL LIBERALISM 1 3 3 - 7 2
( 1 9 9 3 ) .
9
For proponents of such approach, see M A R K TUSHNET & BOJAN BUGARIC, POWER TO THE PEOPLE 1 6 1 - 3 , 1 7 7
( 2 0 2 1 ) ; Benjamin Garcia Helgado & Raul Sanchez Urribarri, Court-packing and democratic decay: A necessary
relationship? GLOBAL CONSTITUTIONALISM 1 - 2 8 ( 2 0 2 3 ) .
32 í«CON (2023), 1 - 4 7 Articles
context-dependent and vary across jurisdictions, we construct normative political
criteria of legitimate court-packing.
The mid-level goals of legitimate court-packing require us to create a set of
clear, forward-looking criteria to distinguish legitimate from illegitimate courtpacking
so that the latter can be exposed and ideally stopped at the very beginning.
If these criteria are internalized and followed in practice, that should make courtpacking
actually less tempting to political leaders. Even if not, the signaling function
of these criteria can at least mitigate the impact of illegitimate court-packing,
mobilize opposition, and in some jurisdictions also increase the pressure from the
international and supranational actors. If we look at the problem from the reverse
angle, clear criteria for legitimate court-packing might prove to be a strong deterrent
not only for politicians, but also for those judges who became complicit i n it,
by showing them that there is a way to get rid of them or to limit their influence
legitimately.
The important caveat of our turn to a mid-level pragmatic theory of court-packing
is that each court-packing justification carries with it some dangers of backlash.
While some of these dangers are inherent i n any court-packing (danger of cyclical
repetition), others are context-dependent and may vary from one jurisdiction to another.
We therefore argue that the conceptualization of court-packing legitimacy
requires one to look both at when the court-packing is legitimate and at how to execute
its techniques legitimately, eliminating as many risks as possible. This second
dimension of legitimacy thus interacts with constitutional norms and internationally
entrenched rules and practices, which narrow down the applicability of individual
court-packing techniques in a funnel-like structure.
These two dimensions of legitimate court-packing have been already implicitly
invoked by some scholarly works, most coherently by Tom Daly who proposed a fivepronged
analytical framework of how to evaluate court-packing: its democratic context,
articulated reform purpose, reform options (i.e. alternative policies at hand),
reform process (deliberation on the policy), and risk of repetition.1 9 0
Our mid-level theory draws on this literature and develops it into two dimensions
of court-packing legitimacy. With some exaggeration, we argue that our mid-level
theory aims to capture both the ius ad bellum of court-packing (when it is justified),
and the ius in hello of court-packing (how to execute these justified court-packing
Daly, supra note 10. For cases of possible good court-packing, see papers i n the International
Association of Constitutional Law symposium: Oren Tamir, "Good" Court-Packing in the Real World,
INT'L ASS'N CONST. L. BLOG (Apr. 2, 2022), https://blog-iacl-aidc.org/new-blog-3/2022/4/5/goodcourt-packing-in-the-real-world-z38xc
Mark Tushnet, Court-Packing: Four Observations on a General
Theory of Constitutional Change, INT'L ASS'N CONST. L. BLOG (Mar. 17, 2 0 2 2 ) , https://blog-iacl-aidc.org/
new-blog-3 /2022/3/17/court-packing-four-observations-on-a-general-theory-of-constitutionalchange-6wskd
Rosalind Dixon, Court-Packing in Comparative Perspective, INT'L ASS'N CONST. L. BLOG
(Mar. 2 2 , 2022), https://blog-iacl-aidc.org/new-blog-3/2022/3/22/court-packing-in-comparativeperspective-rzjbl
David Kosař & Katarína Šipulová, The Ius ad Bellum and Ius in Bella of Court-Packing,
INT'L ASS'N CONST. L. BLOG (Mar. 2 4 , 2 0 2 2 ) , https://blog-iacl-aidc.Org/new-blog-3/2022/3/24/
the-ius-ad-bellum-and-ius-in-bello-of-court-packing-wghpw.
Comparative court-packing 33
reforms so that they carry as few costs and dangers as possible).1 9 1
We believe that the
separation of these two dimensions brings more clarity in the assessment of courtpacking
dangers, and helps one to identify subsequent conditions placed on any of the
mid-level justifications. We also move beyond the democratic context and offer a more
generalized, forward-looking assessment, which does not rely on the effects of courtpacking
and frees the debate from the charges of bias and double standards levelled
against the "good guys" and the "bad guys."
In what follows, we first discuss the ius ad bellum dimension, introducing the most
common justifications of court-packing raised by practice and scholarship. Then, we
organize individual justifications into a legitimacy algorithm which assigns them additional
procedural and deliberative conditions, and address a categorization of courtpacking
techniques based on their interaction with other domestic and international
rules and principles (the ius in hello dimension).
4.2. Mid-level justifications: The ius ad bellum of court-packing
The existing scholarship analyzing goals pursued by "good" court-packing1 9 2
has
generally accepted as legitimate the following five most common pragmatic midlevel
justifications: (i) to ensure a smooth democratic transition, (ii) to eradicate
widespread judicial corruption, (iii) to respond to previous illegitimate courtpacking,
(iv) to rebalance an unrepresentative court, and, finally, (v) to enhance the
court's efficiency. We argue that careful analysis and differentiation of these typical
mid-level justifications are the key to understanding under what conditions courtpacking
can be legitimate.
a) Democratic transition
The first mid-level justification, crucial for theorizing about court-packing, is to ensure
a smooth democratic transition. A need to change personnel on the bench targets
predominantly those transforming societies i n which judges played a significant
role in violations of individual rights or simply helped to underpin the old regime's
1 9 1
We are grateful for this metaphor to our colleague Jan Petrov. We would also like to note that we are aware
of theoretical differences between how international law uses the concepts of ius ad bellum and ius in bello.
In particular, ius ad bellum and ius in bello are totally separate questions in international humanitarian
law, as the casus belli (e.g. self-defense, humanitarian intervention, or aggressive war) has zero impact on
compliance with the separate ius in bello rules, while in the court-packing context it is sometimes difficult
to distinguish these two stages and the justifications of court-packing thus interact with the "secondstep"
rules. Hence, we borrow the concepts of ius ad bellum and ius in bello only "narrowly." However, we
still consider it a useful theoretical metaphor for a two-tiered approach to an analysis of the legitimacy of
court-packing we propose.
1 9 2
See, e.g., Zabyelina, supra note 94 (discussing the lustration of judges in Ukraine); Thomas M . Keck, CourtPacking
andDemocratic Erosion, in DEMOCRATIC RESILIENCE: CAN THE UNITED STATES WITHSTAND RISING POLARIZATION?
141 (Suzanne Mettler, Robert Lieberman, & Ken Roberts, eds., 2021). For individual grounds, see
references below. See also Tamir, supra note 186; Tushnet, supra note 186; Dixon, supra note 186; Kosař
& Katarína Šipulová, supra note 186; Tom Daly, Can "Good" Court-Packing be Justified to Repair Democratic
Decay?, INT'L ASS'N CONST. L. BLOG (Mar. 17, 2022), https://blog-iacl-aidc.Org/new-blog-3/2022/3/17/
can-good-court-packing-be-justified-to-repair-democratic-decay-tnets.
34 í«CON (2023), 1 - 4 7 Articles
power.1 9 3
Typically, calls for systemic court-packing after the transition are justified by
judges' collaboration with the previous regime, their complicity in gross human rights
violations, their dereliction of the judicial duty to decide independently and impartially,
and sometimes even by their incompetence.1 9 4
Latin American transitions from
authoritarian to democratic regimes and the fall of communist regimes i n CEE are
typical examples of situations where we face the "regime-relative nature of judicial independence.
" 1 9 5
As non-democratic regimes often lack a judiciary insulated from political
power, transitional requirements on judicial independence are also limited. Take,
for example, the case of Czechoslovakia which, soon after the transition, implemented
a whole set of measures aimed at ousting communist judges: judicial reappointments,
retentions, disciplining, as well as lustration.1 9 6
Yet, all these mechanisms, lustration
included, are typically interpreted as legitimate1 9 7
by reason of the total control that
communist regimes held over domestic courts. The Lustration Act implemented i n
2014 in Ukraine after the fall of Viktor Yanukovych's regime was more controversial,
as it has been disputed whether this was a regime change. However, the vetting of
Ukrainian judges, albeit to a great extent toothless, was still eventually endorsed by
the international community.1 9 8
Similar examples are to be found also outside the CEE setting. After the Argentinian
regime change i n 1983, all the Supreme Court Justices appointed by the previous
regime handed i n their resignations—as was the typical practice i n that country.
Nevertheless, some scholars suggest that even without the historical practice, the new
President Alfonsin could easily and legitimately have demanded that judges resign or
impeached them, given that the previous military junta regime had used the courts to
underpin its own government.1 9 9
The big caveat coming with regime change is that it relates exclusively to transitions
from non-democratic regimes,2 0 0
as the doctrine of limited judicial independence
does not stretch to situations where any other regime type has overthrown a democratic
regime. For instance, court-packing after the 1948 communist coup d'etat
in Czechoslovakia was not legitimate as it was not part of transition to a democratic
regime. In other words, the relative character and specificity of regime-related
1 9 3
Robertson, supra note 13; Kosař, supra note 96; Siegel, supra note 159.
1 9 4
See Blankenburg, supra note 14; DAVID DYZENHAUS, JUDGING THE JUDGES, JUDGING OURSELVES: TRUTH, RECONCILIATION
AND THE APARTHEID LEGAL ORDER (2003); HAKEEM YUSUF, TRANSITIONAL JUSTICE, JUDICIAL ACCOUNTABILITY AND THE RULE
OF LAW (2010); Kosař, supra n.96.
1 9 5
Owen M . Fiss, The Limits of Judicial Independence, 2 5 U. MIAMI INTER-AM. L . REV. 57(1993).
1 9 6
KOSAŘ & ŠIPULOVÁ, supra note 13.
1 9 7
Marcos Zunino, Jan van Zyl Smit, & Christina Murray, Special Processesfor the Reassessment and Removal of
Judges in the Context of Constitutional Transitions: Strengthening the Rule of Law (Bonavero Inst. Hum. Rts.
Oxford, Research Workshop, May 1 0 - 1 1 , 2019).
1 9 8
Venice Comm'n, supra note 91; Polyakh & Ors. v. Ukraine, App. No. 58812/15, Eur. Ct. H.R., https://
hudoc.echr.coe.int/fre?i=001-196607; Dzehtsiarou, supra note 91. See also Maria Popova, Can a Leopard
Change Its Spots? Strategic Behaviour Versus Professional Role Conception During Ukraine's 2014 Court Chair
Elections, 42 LAW & POL'Y 365 (2020).
1 9 9
Fiss, supra note 196.
2 ( 1
" For the classification of non-democratic regimes and longitudinal data on almost all world countries, see,
e.g., VARIETIES OF DEMOCRACY (V-DEM), www.v-dem.net (last accessed Jan. 23, 2023).
Comparative court-packing 3 5
court-packing then follows a logic similar to that of other legal concepts hidden under
the umbrella of a transitional rule of law.2 0 1
b) Widespread judicial corruption
The second typical justification is the eradication of widespread judicial corruption
that permeates the whole judiciary We thus do not have i n mind isolated cases of
corruption, but only cases of a systemic proportion which cannot be simply solved
by regular disciplinary proceedings. Recent examples of court-packing include several
where accountability for the corrupt behavior of judges was translated into
broader vetting measures, or other political attacks against courts. For instance, the
ECtHR delivered a judgment i n Xhoxhaj v. Albania, a case addressing the impact of
radical accountability tools introduced i n 2017 i n Albania i n order to tackle widespread
corruption practices among judicial ranks. After the initiation of a vetting
procedure, which was supported by the Venice Commission,2 0 2
five out of nine
Constitutional Court justices were dismissed, and three others resigned.2 0 3
One of
the dismissed judges appealed to the Strasbourg Court, but the ECtHR held that
the need to cleanse the Albanian judiciary prevailed over inferences with judicial
independence.2 0 4
The arguments of supranational bodies for systemic vetting and retention actually
significantly resemble traditional transitional justice narratives. European bodies
based the legitimization of court-packing techniques on public interest and public security,
arguing that (i) dismissals are proportionate to serious ethical violations committed
by incriminated judges, and (ii) the fight against corruption both increases
public trust i n the justice system and adds up to a greater protection of individual
rights.2 0 5
c) Previous illegitimate court-packing
The third frequently used justification is a response to previous illegitimate courtpacking.
B y illegitimate court-packing we mean court-packing that would not
pass the algorithm put forward i n Section 4 . 3 . Retaliation for past inferences
with judicial independence is a common moral and political justification behind
publicly announced court-packing plans. Previous illegitimate court-packing is
therefore one of the considerations driving the theorizing about what should, for
example, happen i n Poland once Kaczynski's regime is brought down. Would it
2oi XEITEL, GLOBALIZING TRANSITIONAL JUSTICE: CONTEMPORARY ESSAYS 1 4 9 - 6 4 (2014).
2 ( 1 2
Venice Comm'n, Albania: Amicus Curiae Brief for the Constitutional Court on the Law on the Transitional
Re-evaluation of Judges and Prosecutors, Opinion no. 868/2016 (2016),www.venice.coe.int/webforms/
documents/?pdf=CDL-AD(2016)036-e; Tilman Hoppe, Money Talks. The ECtHR Is Getting Rid of Corrupt
Judges, VERFASSUNGSBLOG (Mar. 5, 2021), https://verfassungsblog.de/money-talks/.
2 ( 1 3
Hoppe, supra n.203.
2 0 4
Xhoxhaj v. Albania, App. No. 15227/19, Eur. Ct. H.R. (Feb. 9, 2021), https://hudoc.echr.coe.int/
fre?i=001-208053.
2(15
Id.
36 I-CON (2023), 1-47 Articles
be legitimate to oust illegitimately appointed Constitutional Tribunal "quasijudges"?2
0 6
Or should they be balanced out by new justices and the size of the
Tribunal expanded?
Similarly, the current development in the United States puts the criterion of illegitimate
court-packing under an even stricter test. Trump's appointments of conservative
justices Neil Gorsuch and A m y Coney Barrett met stark criticism because
they allegedly violate the constitutional convention that in a presidential election
year the US Senate can confirm a Supreme Court justice only with bipartisan supp
o r t . 2 0 7
As a result, several scholars advocated court-packing in order to rebalance
the Supreme Court and protect it from deep polarization.2 0 8
Neil Siegel, for
example, called on the political branches to execute self-restraint and argued that
the only scenario that would legitimize court-packing would be "the convincing
evidence that a [US] President who made one or more appointments to the [US
Supreme] Court was not legitimately elected, and adding Justices was the only
feasible way to undo the likely decades-long impact of those appointments on the
[US Supreme] Court's decision-making."2 0 9
Other opponents stressed the risk of
slipping into an endless cycle of court-packing retribution, where each government
trumps the previous one by expanding or emptying the courts.2 1 0
A n overview
of Latin American episodes of court-packing suffices to demonstrate that
this fear is not unsubstantiated. After all, the cyclical increase and decrease in the
Argentinian Supreme Court's bench has been a dominant feature of domestic politics
since the 1 9 5 0 s . 2 1 1
d) Unrepresentative court
The fourth mid-level justification—to rebalance an unrepresentative court—is even
more controversial. As already indicated above, this argument underlines the current
US discussions on the reform and potential court-packing of the Supreme Court by
Biden's administration in order to balance ideologically a too polarized Supreme Court.
Some of the voices advocating the expansion of the Supreme Court actually delve
more deeply than the Gorsuch/Barrett dispute and build on slowly strengthening doctrinal
opposition to judicial review as such.2 1 2
Many commentators point to how negatively
the Court has intervened in electoral rights and gerrymandering, has created an
2 ( 1 6
This is now even more complicated, as two out of three "quasi-judges" illegitimately elected in December
2015 have died and been replaced by new judges under the "standard process." See Gliszczynska-Grabias
& Sadurski, supra note 138. The fact that all three seats were illegitimately stolen by Kaczynski from the
previous government remains though. The question is thus to what extent the doctrine of the "fruit of the
poisonous tree" applies in this context.
2 1 1 7
Weill, supra note 31.
2 ( 1 8
IanMillhiser, Let's Think About Court-Packing, DEMOCRACY: J. IDEAS, NO. 51 (2019),https://democracyjournal.
org/magazine/51/lets-think-about-court-packing-2/; Werner-Müller, swpranote 156.
2 0 9
Siegel, supra note 159.
2 1 ( 1
David E. Pozen, Hardball and/as Anti-Hardball, 21 N . Y . U . J. LEGIS & PUB. POL'Y 949 (2019); Jeff Schesol, The
Case Against Packing the Court, NEW REPUBLIC (Oct. 14, 2020), https://newrepublic.com/article/159691/
case-against-packing-supreme-court.
2 1 1
Helmke, supra note 55; see also Section 3.1.
2 1 2
Epps & Sitaraman, supra note 175; Ross, supra note 158.
Comparative court-packing 3 7
impetus for corruption, and has been a powerful ally in Trump's battles to strengthen
the already unbalanced executive power at Congress's expense.2 1 3
Yet, there is no clear consensus, either i n the United States or globally i n constitutional
democracies, on the extent to which courts (at least those that exercise judicial
review) should reflect the polarization of opinions and ideas in the political arena or
society as a whole. On the contrary, the separation of powers theory might suggest
otherwise and prevent any abrupt changes i n courts' composition i n order to proportionally
reflect the current political or societal mood. Moreover, these ideological
views in society will necessarily shift in time, and courts cannot be prisoners of political
tinkering whenever such a change occurs. Apart from voices suggesting that ideologically
motivated court-packing will necessarily trigger a cycle of retaliation,2 1 4
or
that the actual results of ideological balancing are dubious at best,2 1 5
we might argue
that there could be other mechanisms, such as broadening of the selection criteria
for new judges which are better suited to bringing various ideological polarizations
of courts closer to the society. Therefore, while calls for a more ideologically balanced
court might seem legitimate and sound, they do not arise out of a unified normative
understanding which, in comparison with the previous three justifications of courtpacking,
increases the threshold for their implementation.
However, the rebalancing of unrepresentative courts might be based on many
grounds other than ideology. Countries with particularly significant racial or ethnic
disparities between the composition of the bench and the population, coupled with
dark historical legacies attached to these ethnic (Rwanda) or racial (South Africa)
cleavages, might have a legitimate interest i n interfering i n courts' composition and
rebalancing the bench i n order to secure a more representative judiciary. A specific
representativeness consideration emerges in new states established by secession or dissolution,
such as in the case of the division of federal Czechoslovakia into two separate
states. Another potential example might be a hypothetical secession of Catalonia from
Spain, where the new, national composition of the judiciary might be invoked in order
to tackle potential biases. Similarly, the representative criterion might also involve geographic
distribution (a fitting example in future might be Canada), religious dividing
lines (which motivated Recep Erdogan's attempt to clear the courts of Kemalists), or
proxy criteria such as where the justices went to a law school (such as in the United
States). Even more controversially, we can argue for gender representation on courts,
particularly with the growing understanding that it is important to have both female
and male judges on the bench.2 1 6
Nevertheless, this representation ground comes dangerously close to standard
court-packing rhetoric we saw invoked by European populist leaders, who justified
a significant reshuffling of the bench by the creation of opportunities for a younger
2 1 3
Epps & Sitaraman, supra note 175; Ross, supra note 158.
2 1 4
Shesol, supra note 50.
2 1 5
Moyn, supra note 159.
2 1 6
The literature on gender representation in the judiciary is vast. For summary of the arguments, see SALLY
J. KENNEY, GENDER AND JUSTICE: W H Y WOMEN IN THE JUDICIARY REALLY MATTER (2013); Rosemary Hunter, More
Than Just a Different Face? Judicial Diversity and Decision-Making, 68 CURRENT LEGAL PROB. 119 (2015).
38 Í-CON (2023), 1-47 Articles
generation of judges. It is important to note that any representative rebalancing invites
controversies similar to ideological repolarization. There is no overarching agreement
on the extent to which courts' composition should reflect the cleavages existing in
society. Moreover, any shifts in courts' composition motivated by such unrepresentativeness
will always need to address the risk of partisan politicization.
e) Efficiency
Finally, political leaders justifying court-packing plans often invoke the efficiency rationale.
For some commentators, this cause has been tainted since FDR's attempt to
expand the Supreme Court in 1937, which relied on false claims about the Court's
inefficiency. However, the efficiency rationale may be a pragmatic consideration for
many political leaders who have no intention of changing the ideological composition
of courts. Consider the reform of the Czech Supreme Administrative Court,2 1 7
and the 2019 expansion of the Irish Court of Appeal,2 1 8
both motivated by addressing
the excessive length of proceedings and the burgeoning caseload. Still, even pragmatic
considerations and attempts to achieve faster and more dynamic courts may backfire
or allow the ruling majority to entrench its position as a side-effect of the reform. The
efficiency justification therefore increases the stakes and safeguards required for its
legitimate implementation.
4.3. Ius ad helium and ius in hello in practice: How to exercise courtpacking
legitimately
A just cause pursued by court-packing policy, however, merely tells us whether there is
a sufficient ground to argue for an exceptional implementation of court-packing that
could be legitimately pursued. The second dimension, the ius in hello of court-packing,
analyzes how to execute court-packing legitimately. In other words, the ius in hello dimension
explores the conditions of legitimate court-packing, what techniques are
better suited to matching the declared aim, and what techniques are more problematic.
As we have already indicated above, legitimate court-packing is not devoid of
dangers; instead, each mid-level justification inherently involves different costs and
risks. Large-scale vetting of Ukrainian judges, condoned, albeit grudgingly, by the international
community, is a fitting example of the fact that any, even legitimate, courtpacking
may easily go wrong. The same applies to initially "good" court-packing in
Turkey and Argentina discussed by Tom Daly.2 1 9
Daly therefore rightly recognizes that
legitimate court-packing needs to be considered against its potential risks,2 2 0
stressing
the risk of repetition.
Based on our comparative overview of court-packing efforts, we have identified two
more typical dangers, and thus we are working with three risks of court-packing: (i)
2 1 7
Kosař & Šipulová, supra note 9.
2 1 8
Irish Dep't Justice, Press Release, Court of Appeal Numbers to Increase by 6, Gov.m (Mar. 22, 2019), www.
justice.ie/en/JELR/Pages/PR19000085.
2 1 9
Daly, supra note 10.
22(1
Id.
Comparative court-packing 39
the risk of cyclical court-packing, (ii) the risk of the partisan politicization of courts,
and (iii) the risk of spreading fear among judges having to decide on politically salient
issues.
The risk of cyclical court-packing dominates the arguments raised by courtpacking
critics,2 2 1
referring to examples of Argentina and Venezuela. Fear of the
normalization of court-packing and a tit-for-tat tactic resonates also i n the US
debate o n the expansion of the Supreme Court.2 2 2
Some US scholars point out
that court-packing implemented i n the current polarized atmosphere would pose
unprecedented dangers, spiraling and essentially ballooning the Court's size to
such a n extent that its legitimacy would "pop,"2 2 3
and potentially taking down
the entire constitutional system.2 2 4
If court-packing becomes cyclical then it will
never lead to a new stable equilibrium. Instead, it will lead to a convention of
tinkering with the size and the composition of the court whenever the opposition
party wins elections.2 2 5
For instance, Chilton, Epps, Rozema, and Sen have
created a hypothetical model of partisan behavior after the eventual expansion of
the US Supreme Court and argue that repeated partisan court-packing will probably
occur, increasing the size of the Court to twenty-three judges within the next
fifty years.2 2 6
In democratic countries, cyclical court-packing thus goes hand in hand with the
partisan politicization of courts, which might, according to some scholars, limit the
institutional separation of powers,2 2 7
even more so if one considers the suggestion
that the public has very limited willingness to punish incumbents via electoral retaliation
for attacks on courts.2 2 8
Furthermore, court-packing endangers judicial decision-making i n other ways.
Some scholars argue that the looming risk of court-packing is a significant constraint
on judicial behavior, reducing subjective judicial independence and the willingness
of judges to decide on politically salient issues.2 2 9
Court-packing may therefore lead
to the self-constrained behavior of courts or their resignation on controlling the
other two political powers. This is particularly troubling in transitioning and not yet
consolidated democracies.
After a careful analysis of the potential benefits and costs of each mid-level goal of
court-packing, we reorganized individual justifications into the legitimacy algorithm
2 2 1
Braver, supra note 8.
2 2 2
Some scholars also point out the danger that the normalization of court-packing in democratic regimes
would further weaponize its use by authoritarian leaders. See Dixon, supra note 182; see also PRESIDENTIAL
COMM'N ON THE SUP. CT. UNITED STATES, supra note 2.
2 2 3
Braver, supra note 8, at 2 748.
2 2 4
NeilSiegel, Some Notes on Court-Packing, Then andNow, BALKINIZATIONBLOG (NOV. 26, 2017), https://balkin.
blogspot.com/2017/11/ some-notes-on-court-packing-then-and-now.html.
2 2 5
Epps & Sitaraman, supra note 175.
2 2 6
Adam Chilton, Daniel Epps, Kyle Rozema, & Maya Sen, The Endgame of Court-Packing (Apr. 27, 2021),
https://ssrn.com/abstract=3835502.
2 2 7
Supra PRESIDENTIAL COMM'N ON THE SUP. CT. UNITED STATES, note 2, at 77.
2 2 8
Amanda Driscoll & Michael Nelson, The Minimal Costs of Court Curbing: Experimental Evidence from the
United States (Jan. 25, 2021), https://ssrn.com/abstract=3917007.
2 2 9
Ross, supra note 158; Siegel, supra note 159.
40 Z-CON (2023), 1-47 Articles
Is Court-Packing Legitimate?
•e-rnacralic TrflneiliGrt?
Legitimate court* packing Reaction to large-scale judicial corruption?
Legltfrn^te court-packing Reaction to previous illegitimate
court-packing?
Legitimate edurl-paekin Unrepresentative or inefftcienl court?
Legitimate- court-packing
::ir:|ilinl.iff: i - . O i n h - i i - - i'1
-!
Figure 1. Legitimacy algorithm of court-packing. Source: authors.
(Figure 1), and assigned them further constraining deliberative and procedural
criteria aimed at eliminating as many risks as possible.
The algorithm proceeds in four steps. The more dangers the goal pursued by courtpacking
triggers, the more constrained is political actors' option to legitimize it.
Following this logic, the algorithm is divided into four questions: (i) is court-packing
an integral part of a democratic transition?; (ii) does the court-packing address widespread
patterns of judicial corruption?; (iii) does the court-packing in question react to
previous illegitimate court-packing?; and (iv) does the court-packing aim to make the
court more representative or efficient? The answers to these four questions determine
whether court-packing meets the extraordinary political conditions for its legitimization
and what additional requirements, such as proportionality and multipartisan
support, must be met.
The first question of our legitimacy algorithm asks whether court-packing is one of
the measures implemented in the wake of democratic transition. Democratic regime
change typically allows governments plenty of room to maneuver in implementing
policies which would not under normal circumstances qualify as consistent with the
rule of law. Communist CEE judiciaries are the best example of how implicated nondemocratic
judiciaries might be in human rights violations committed by the regime,
and how they might require thorough vetting or retention in order to purge the old
elite and renew public trust in and commitment to rule of law principles. The dangers
of transitional court-packing going awry are relatively small. Given the extraordinary
Comparative court-packing 41
conditions, there is very little risk of repetition and the mere character of a transition
renders the court-packing an exceptional tool accessible only in the transitional rule
of law framework.2 3 0
The exceptionality of transition also eliminates the fear of judges
that they will have to face looming court-packing threats.
Therefore, if the country is actually undergoing a democratic transition, then we
argue that the new political elite can implement court-packing devoid of any further
conditions as part of transitional justice legislation. The discretion of the new political
elite is—like other transitional justice policies—very great and, in line with transitional
justice scholarship, does not require any further political conditionality.
Yet, we stress that the criterion relates only to transitions to democracy and its interpretation
leaves little room for doubt, relying on established classifications of regimes
by political science scholarship (e.g. V-Dem). It is, however, worth noting that this step
is time-limited and transitional justification cannot stretch to cover too long a period.
This was clearly visible in Hungary when Orban first tried publicly to justify the general
lowering of the retirement age forjudges by de-communisation.2 3 1
The justification,
however, did not prove valid, as, in the over twenty years since the revolution, the
majority of judges who had served under communist rule had already left the system
and the rest had proved loyal to the new regime. It is worth mentioning that Orban's
government later abandoned the de-communization rhetoric, and in proceedings before
the CJEU justified (unsuccessfully) its retirement-age-reducing mechanism only
by the need to unify the varied retirement ages of public officials and to increase age diversity
within the judiciary.2 3 2
Similarly, the ECtHR made clear that a long time having
lapsed since a democratic revolution makes lustration laws problematic.2 3 3
If the court-packing plan cannot be justified as a transitional measure, we move to
the second step and ask if it addresses widespread judicial corruption. As examples
of the recent corrupt behavior of judges have demonstrated, the implementation
of accountability tools to rid the courts of deeply rooted corruption and patronage
networks invites broad interferences in their composition. These broad interferences
are generally supported by the international community.2 3 4
Like regime change, largescale
corruption allows significant interferences into courts' composition in order to
renew their independence and public confidence in them, but also to deter the repetition
of corrupt behavior. Given the significance and scope of corruption requiring substantial
reform of one branch of government, the techniques for tackling large-scale
judicial corruption come very close to the discretion typically implemented as part of
the transitional rule of law.2 3 5
That means that political actors may legitimately aim
for a technique leading to the removal of those judges where there is a reasonable
2 3 ( 1
TEITEL, supra note 202.
2 3 1
Belavusau, supra note 79; Dariusz Kalan, A Private State: Viktor Orbän's National Post-Communism,
KLUB JAGIELLONSKI (July 1, 2019), https://klubjagiellonski.pl/2019/07/01/a-private-state-viktor-orbans-
national-post-communism/.
2 3 2
Case C-286/12, Eur. Comm'n v. Hungary, ECLI:EU:C:2012:687 (Nov. 6, 2012).
2 3 3
Cynthia M . Home, International Legal Rulings on Lustration Policies in Central and Eastern Europe: Rule of
Law in Historical Context, 34 LAW & Soc. INQUIRY 713 (2009).
2 3 4
Venice Comm'n, supra note 203.
2 3 5
TEITEL, supra note 202.
42 I-CON ( 2 0 2 3 ) , 1 - 4 7 Articles
suspicion of judicial corruption, such as an anomalous disparity between their property
and income.
Like regime transition, the extraordinary character of large-scale corruption
eliminates the majority of traditional court-packing dangers, particularly those related
to repetition, normalization, or constraints on internal, subjective judicial independence.
Yet, depending on the actors involved i n the corrupt practices, court-packing
justified by large-scale corruption might potentially lead to partisan polarization of the
judiciary, particularly in two-party systems. However, compared to other justifications
of legitimate court-packing dealt with below, its legitimate execution cannot be conditioned
by multipartisan support, as corruption networks most frequently include both
judges and politicians. Furthermore, while various expert opinions may be a helpful
tool proving the righteousness of a government's claims, we argue that such a severe
structural problem as the large-scale corruption of the judiciary should not tie the
hands of political leaders, who often need to use the momentum of a robust coalition
to push through an anticorruption reform.2 3 6
We believe it to be sufficient that supranational
bodies, the ECtHR included, have recently reaffirmed that interferences
in judicial independence by harsh accountability mechanisms are possible i n those
jurisdictions which face widespread corruption networks.2 3 7
What may, on the other hand, significantly foster the legitimacy of such accountability
mechanisms is the participation of retired foreign judges, particularly those
who are domesticated (i.e. understand the culture, legal system, and language)2 3 8
and who enjoy a high level of respect i n the given jurisdiction,2 3 9
i n the vetting of
domestic judges. A successful example of such employment of foreign judges was
the appointment of Sir Anthony Hooper, a former Lord Justice of Appeal, as Chair of
the Ukrainian Public Council of International Experts which was responsible for the
post-Majdan screening of judicial candidates for the High Anti-Corruption Court as
regards their integrity and ethics.2 4 0
If the court-packing strategy is not seen as i n response to widespread judicial corruption,
we move to the third step, where we ask whether court-packing responds to
previous illegitimate court-packing. As we have already stated above, this step cannot
rely on the subsequent behavior of packed judges, as such an approach would allow too
much leeway for political leaders to normalize court-packing strategies and would depend
on the problematic proving of how judges behave and what motivates the results
of their decision-making. Instead, like the previous steps, responsive court-packing is
2 3 6
Tamir, supra note 1 8 6 .
2 3 7
Venice Comm'n, supra note 2 0 3 .
238
See similarly Rosalind Dixon & Vicki Jackson, Hybrid Constitutional Courts: Foreign Judges on National
Constitutional Courts, 5 7 C O M M . J. TRANSNAT'LL. 2 8 3 ( 2 0 1 9 ) .
2 3 9
See similarly A n n a Dziendzic, Foreign Judges of the Pacific as Agents of Global Constitutionalism, 1 0 GLOBAL
CONST. 3 5 1 ( 2 0 2 1 ) ; A N N A DZIENDZIC, FOREIGN JUDGES IN THE PACIFIC ( 2 0 2 1 ) .
240 jg j r u s i is iq choose: International Experts Vetting Candidates for Public Office, VERFASSUNGSBLOG (Apr. 2 3 ,
2 0 2 1 ) , https://verfassungsblog.de/to-trust-is-to-choose/. Sir Anthony Hooper and other prominent foreign
judges sitting on the Ukrainian Ethics Council (created i n 2 0 2 1 ) which was created to establish
the compliance of a candidate for the position of a member of the High Council of Justice (the Judicial
Appointment and Judicial Disciplinary Committee) with the criteria of professional ethics and integrity.
Comparative court-packing 43
time-limited and should not be used to rectify any original illegitimate court-packing
after a long period of time. However, given the inherent risk of spiraling into a series
of court-packing plans, court-packing justified by a response to previous illegitimate
tinkering with the bench is legitimate only if it is conditioned by its proportionality
to the deleterious ramifications of the previous illegitimate court-packing. In other
words, we ask whether the court-packing aims for a "paired effect," balancing out
the results of the future illegitimate court-packing. For example, the appointment of
five Polish Constitutional Tribunal justices by Kaczynski's government was clearly
in retaliation for the previous illegitimate move of Civic Platform's executive prematurely
to select two justices. Nevertheless, Kaczynski failed to execute his step proportionally,
and instead of balancing or rectifying previous court-packing, he attempted
to obtain an even greater advantage at the Tribunal by appointing five new justices.
Similarly, if either Gorsuch's or Barrett's appointment to the US Supreme Court actually
amounted to court-packing, Biden's administration would be able to expand the
Supreme Court bench with a single judge.2 4 1
More controversially, if both the refusal
to vote on Merrick Garland and the Barrett appointment were examples of illegitimate
court-packing, Biden's administration could legitimately increase the size of the
Supreme Court by two justices. If such a "responsive" court-packing proposal is not
proportional, it is illegitimate. The paired effect of the court-packing therefore serves
as a bulwark against cyclical court-packing, since the proportional court-packing
closes off the cycle and minimizes the threat of recurring retaliations. Unfortunately,
the paired effect has its limits. When the previous court-packing affected the entire
court, the proportional response is to pack the whole court, which again shows that
cyclical court-packing might require different solutions.
Finally, if court-packing does not relate to any of the previous justifications, we
proceed to the fourth step and ask whether it is in response to the unrepresentativeness
or inefficiency of the court. Compared to previous mid-level justifications, these
court-packing goals pose potentially the biggest risks, as they build on more general
and frequent complaints and dissatisfaction with the courts. These seemingly honorable
justifications often invoke partisan goals and serve as a mere facade. For that
reason, we condition these mid-level justifications with a set of very stringent deliberative
criteria: the ability of the political leader to secure multipartisan (or bipartisan)
support, validation in a constitutional referendum (Turkey 2010), or (international)
expert support.
In line with democratic considerations, it is difficult to eliminate strategies of courtpacking
if they follow the letter of the constitution and are executed, for example,
by governments enjoying a constitutional majority. We can, however, constrain
them by stringent deliberative conditions on the consensus achieved within the political
sphere, the public arena, or the international expert arena in those fragmented
2 4 1
We are, of course, aware that in cases similar to the US example, it might be difficult to come to an agreement
about what the constitutional principle is and whether the act of executive was or was not constitutional.
For that reason, we rely on our definition of court-packing, not on constitutionality, as our
definition rests on more objective criteria to evaluate the effect of a given practice on the bench.
44 I-CON (2023), 1-47 Articles
societies where the political spectrum whose actors previously curbed the judiciary
would never agree to its rectification via court-packing. Multi-partisan or expert international
deliberation also serves as a check to those court-packing efforts where the
political spectrum or society is too polarized and where court-packing, even well-intentioned,
might lead to even greater polarization.
Most other possible justifications (such as those invoked by the Polish and Hungarian
governments before the CJEU, i.e. the need to unify the rules on age limits for mandatory
retirement across society, or the harmonization of retirement pension schemes)
simply do not meet the threshold necessary to legitimize such an intensive interference
with judicial independence as court-packing.2 4 2
To be sure, there are unique
events, such as dissolution of the state, secession, reunification, or adding new state
into a federation, which raise unique issues that require unique solutions. That said,
it is important to bear in mind that even these unique constitutional moments can be
exploited for political gains, and thus no irregular change of the composition of the
court is purely technical.
Hence, our criteria for legitimate court-packing are stringent. However, the construction
of an algorithm with a stringent test was a conscious decision on our part
and reflects our definition of court-packing, which does not prohibit all changes to the
composition of the apex courts. For example, it allows profuturo gradual changes in
courts' composition that do not give direct benefits to the sitting government. Given
these considerations, we argue that the situations where political leaders need to resort
to court-packing under our definition in order to rectify problems inside the judiciary
are actually rare, with the exception of responding to previous court-packing.
Some authors therefore claim that court-packing should represent a means of
last resort, considered against the backdrop of other available reforms,2 4 3
or even
that other court-curbing practices might be more appropriate.2 4 4
This sits well
with an understanding that even if court-packing pursues a legitimate aim, its individual
techniques, their legality or constitutionality (i.e. the ius in bello) still need
to be evaluated. There are actually several proposals on the table, both in the United
States (expansion of the Supreme Court, introducing term limits for justices, jurisdiction
stripping, the appointment of all appellate judges on circuit courts as Supreme
Court justices so as to form random panels of nine)2 4 5
and in Europe (the removal of
packed judges,2 4 6
the criminalization2 4 7
or disciplining of judges packed by Orban and
Kaczynski based on a principle stemming from EU law2 4 8
).
1 2
Case C-286/12, Eur. Comm'n v. Hungary, ECLI:EU:C:2012:687 (Nov. 6, 2012); Case C-192/18, Eur.
Comm'n v. Poland, ECLI:EU:C:2019:924 (Nov. 5, 2019); Case C-619/18, Eur. Comm'n v. Poland,
ECLI:EU:C:2019:531 (June 24, 2019).
1 3
Daly, supra note 10.
1 4
Braver, supra note 8.
1 5
MarkTushnet, What Kinds of "Supreme Court Reform" Could Rebalance the Supreme Court?, YALE UNIV. PRESS
BLOG (Oct. 7, 2020), http://blog.yalebooks.com/2020/10/07/what-kinds-of-supreme-court-reformcould-rebalance-the-supreme-court/
Epps & Sitaraman, supra note 175.
16
Debate: Restoring Constitutionalism, supra note 162.
1 7
Von Bogdandy & Spieker, supra note 163.
ts
Debate: Restoring Constitutionalism, supra note 162.
Comparative court-packing 45
The core question to be pursued in the ius in hello dimension of court-packing, therefore,
is how one is to evaluate the appropriateness of these alternative techniques.
Even if a particular court-packing plan is eventually found to be legitimate according
to our criteria, we cannot pretend that it does not interfere with judicial independence.
In fact, opponents of legitimate court-packing often argue that any courtpacking,
including legitimate cases, would strengthen the view that courts are not
impartial defenders of rights,2 4 9
and that they appear more partisan2 5 0
or downright
politicized.2 5 1
There is also no clarity on what effect court-packing will have on courts'
decision-making, a factor which is relevant particularly for court-packing motivated
by the ideological bias of courts.2 5 2
Likewise, we cannot be sure that legitimate courtpacking
will not go awry. For instance, Daly claims that the overhaul of the Turkish
Constitutional Court i n 2012 and purges at the Argentinian Supreme Court i n the
1980s are contexts in which court-packing was initially justifiable but has become inextricably
captured by deep-seated or developing pathologies of the political system.2 5 3
The ius in hello of legitimate court-packing prompts us to look more deeply at
tensions between court-packing and constitutional (or international) guarantees of
judicial independence. We argue that any legitimate court-packing should impose the
least stress on principles of constitutionality and judicial independence, and in order
to do so, political leaders must carefully analyze which techniques from our taxonomy
are most appropriate to meet their aims.
The question of techniques' appropriateness is closely related to another theoretical
consideration, which is the relationship between the legitimacy and the constitutionality
of court-packing. While our evaluation of court-packing and its legitimacy uses
a higher level of abstraction, allowing us to create a legitimacy algorithm with universal
applicability, we keep the logic of techniques' appropriateness context-based.
We merely divide techniques into three very broad categories: (i) inherently reprehensible
techniques (such as the threat of violence, interference i n property rights,
abusive removals, disciplining, or prosecution); (ii) hardball techniques (such as lustration)
which require a political elite with very considerable discretion; and (iii) prima
facie legitimate techniques, which might be on their own constitutional in character
but may amount to court-packing on the basis of their effect.
As demonstrated in Figure 2, the scope of available techniques for the implementation
of court-packing narrows down with the decreasing discretion enjoyed by political
actors using four different legitimacy justifications. The first category, the inherently
reprehensible court-packing technique, can never pass through the legitimacy funnel.
2 4 9
BojanBugaric&MarkTushnet, Court-Packing,Judiciallndependence,andPopulism. WhyPolandandtheUnited
States Are Different, VERFASSUNGSBLOG 0uly 11, 2020), https://verfassungsblog.de/court-packing-judicialindependence-and-populism/;
BOJAN BUGARIC & M A R K TUSHNET, POWER TO THE PEOPLE: CONSTITUTIONALISM IN THE
AGE OF POPULISM (2021).
2 5 ( 1
Jasmine Aquilera, "I Am Very Much Alive": Ruth Bader Ginsburg Discusses Her Health, the Late Justice
Stevens and Court Packing, TIME (June 24, 2019), https://time.com/5634180/ruth-bader-ginsburg-
supreme-court-justices-health/.
2 5 1
Moyn, supra note 159.
252
Id.
2 5 3
Daly, supra note 10.
46 Z-CON (2023), 1-47 Articles
Available court-packing techniques (hardball and prima facie legitimate!
Inherently reprehensible court-packing techniques
Democratic transition — —
Large-scale corruption
.. I.J.,
J..
Reaction to illegitimate CP \
.. I.J.,
J..
Other justification
1 If—
Figure 2. Diversification of court-packing techniques according to legitimate aims of courtpacking.
Source: authors.
The scope of available court-packing techniques of the second and third categories
then narrows down, together with the stringency of the criteria required for different
steps in the legitimacy algorithm. While transitional court-packing allows political
leaders very wide discretion (in line with theories of transitional rule of law) and to resort
to hardball techniques, the number of available techniques thins down the deeper
we descend in the algorithm. The particular decision, however, still rests on a very
careful evaluation of the compatibility of individual techniques with constitutional
and international standards relevant for the given jurisdiction.
5. Conclusion
In this article, we have reconceptualized court-packing as a change of the composition
of the existing court, which is irregular, actively driven, and creates a new majority
at the court or restricts the old one. We divided existing court-packing techniques
into three overarching categories—expanding, emptying, and swapping strategies—
resulting in quantitative or qualitative changes in the court's composition. We also
argued that, although it is necessary to acknowledge that court-packing may sometimes
pursue legitimate aims, all three court-packing strategies carry dangers unless
mitigated by a strict set of procedural and deliberative criteria.
The intensity of the US debate and an unprecedentedly large group of scholars and
experts inclined to accept court-packing reform cloud the general consideration of
court-packing as a legitimate practice. The mass of voices advocating court-packing
builds on the normative consideration that the US judiciary is facing a democratic
crisis which justifies any measure—court-packing included. However, our comparative
analysis, and the repercussions of and dangers posed by court-packing abroad,
show that its eventual implementation is a great deal more complex. The US debate
is born out of the unique position of Supreme Court Justices, who are elected with
Comparative court-packing 47
particularly strong guarantees of tenure and irremovability This specific context,
which increases the political stakes vested in judicial selection and introduces phenomena
such as strategic judicial resignations, is particularly inapt as a starting point
for conceptualizing court-packing at the global level.
In order to distinguish between legitimate and illegitimate court-packing, we therefore
build on our comparative conceptualization. We forego loaded meta-debates on
its relationship with the separation of powers, the rule of law, social responsiveness,
or public confidence, and instead focus on pragmatic mid-level justifications of courtpacking
and practical contingencies of its implementation.
Our mid-level theory thus recognizes two core dimensions of legitimate courtpacking:
the ius ad bellum (the legitimate aim pursued by court-packing) and the ius
in hello of court-packing (how to execute it legitimately). The ius ad bellum of legitimate
court-packing builds on the following five mid-level justifications of legitimate
court-packing: (i) to ensure a smooth democratic transition; (ii) to eradicate widespread
judicial corruption, (iii) to respond to previous illegitimate court-packing; (iv)
to rebalance an unrepresentative court; and, finally, (v) to improve a court's efficiency.
The ius in hello of court-packing informs us about the appropriate techniques for
executing court-packing, singling out what we address as inherently reprehensible
techniques (those, e.g., that openly violate constitutional and international rules).
Based on the dangers and risks posed by each of these mid-level justifications of courtpacking
(cyclically, the partisan politicization of courts, and spreading fear among
judges having to decide on politically salient issues), we condition in our legitimacy
algorithm respective justifications with the use of stringent procedural and deliberative
criteria. The more dangers court-packing creates and the deeper we go in the legitimacy
algorithm, the less discretion political leaders have to choose an appropriate
technique of court-packing.
This mid-level theory therefore helps us to provide a general conceptualization
of the legitimacy of court-packing. Such a nuanced analysis that is detached from
the peculiarities of a given country or a used mechanism provides a unique tool for
assessing the legitimacy of court-packing plans all over the world. We caution that
many of the considerations we use to test the two dimensions of legitimacy rest on
facts and evidence which need to be evaluated on a case-by-case basis. Our mid-level
theory of court-packing legitimacy therefore invites other scholars to undertake
in-depth empirical studies on individual examples of court-packing, examining in
particular the "good" court-packing that did not turn "bad." Understanding their
motivations, implementation, dangers, and effects will help to test our theory and
bring new, much-needed understandings on its interaction with other constitutional
rules and values.