Under Pressure: Designing Constitutional Safeguards Against Court-Packing Strategies

Recent constitutional reforms aimed at restructuring domestic judiciaries brought the selection and dismissal of judges to the spotlight. Recent examples from Hungary, Poland, Turkey, Slovakia or Ukraine showed that apex courts can be silenced or even rigged easily. Selection and dismissal of constitutional justices and supreme court judges is a dangerous tool allowing the political leaders in power to control who sits on the bench and influence judicial decision-making. Constitutional drafters and international bodies are well aware of the temptation to tinker with the composition of apex courts. For a long time, international soft law considered the engagement of judicial councils and similar bodies as a sufficient safeguard against improper politicization of courts. However, the cases of Baka, Gersdorf, Rzeplinski, and Volkov force us to reconsider whether judicial councils, and involvement of judges in general, in selection processes provide a proper safeguard. More specifically, populist governments may opt for various techniques, from criminal and disciplinary proceedings against judges (Turkey, Slovakia), through soft measures such as forced retirement (Hungary), “voluntary dismissals” (Poland), to a dismissal of court presidents through constitutional amendment (Poland, Hungary), depending on what majority they enjoy in the Parliament. The aim of this article is to analyze the processes and tools that political leaders usually employ in order to change the composition of apex courts. Based on a collection of empirical data from different countries whose apex court judges were recently targeted by an undue political pressure, we will first explore what strategies political leaders usually use in order to attack these judges. Second, we will categorize them. Finally, we will analyze which safeguards and strategies of judicial resistance may help the affected judges to withstand the political pressure and finish their original term of office.