Understanding court-packing strategies

Whether we like it or not, court-packing has flourished all over the world. Bolivian, Hungarian, Polish, Turkish as well as Venezuelan political leaders have recently employed various strategies to stack their courts with loyal judges. The widespread use of court-packing all over the world suggests that it is particularly appealing to politicians, because it allows them to pursue several aims at the same time, it is cheaper and yields faster results than blunt institutional attacks. Even in consolidated democracies, such as the United States, the possibility of court-packing is discussed with an intensity unheard of for several decades. Yet, our conceptual understanding of the phenomenon is still very limited. This paper provides a novel conceptualization of court-packing and identifies three court-packing strategies: (1) the expanding strategy, which includes techniques that increase the size of the court, (2) the emptying strategy, which results in a decrease in the number of sitting judges, and (3) the swapping strategy, which aims at replacing sitting judges. Building on this new conceptualisation, we juxtapose court-packing against other political interferences into judicial independence. Many court-curbing practices (modifications of judicial selection processes, abolishing or merging courts, and defining the scope of judicial review) typically fall within the constitutional competences of the executive power and cannot be automatically ruled out as illegitimate. In comparison, we show that court-packing has a normative content, which can be evaluated based on the effect it creates at a court. Finally, reflecting the recent debates on a potential court-packing of the US Supreme Court, we look into difficult examples of court-packing and pose a question whether there are any conditions which could, in theory, make court-packing a legitimate strategy.