Unpacking the Courts: Preliminary Inquiry

The recent cutting-edge scholarship highlights repetitive episodes of court-packing occurring around the world and demonstrate that it is truly a global phenomenon. Court-packing narrative is strongly present in the heart of discussions on potential changes to the composition of the hyper-politicised US Supreme Court, the restoration of the independent judiciary and unpacking of courts after the democratic backsliding in Poland (or the prospect thereof in Hungary), the challenges of setting up stable and effective judicial systems in the postcolonial context in Africa, and the experience with installing loyal allies at apex court in Latin America and Asia. This paper amalgamates previous by picking out one of the crucial threads running through the varied countries, judiciaries, and contexts presented in the previous four court-packing scenarios: the thread of time. It shows how the connections and dynamics at play before court-packing, the precise timing of the court-packing, and what happens after court-packing interconnect to paint a contextual picture of how time links with other factors to show a more nuanced and sophisticated view on the various dimensions of court-packing across time and space. To this end, the paper introduces typologies and laundry lists of possibilities before during and after court-packing to assist policymakers and academics. Then, and most importantly, it locates the scope of court-packing (and the quibbles over the definition of court-packing) with other mechanisms that allow one to “fix” a bench just as effectively, through the use of tinkering with the tail end of judges tenure provisions. The discussion devolves the focus from the how to change the composition of the bench, to how to keep a bench that is or has become aligned, regardless of the manner. Focusing in on the time-element, one sees that the edges of the definition of court-packing are not as important as what a certain judicial reform allows to certain set of political actors to count-on at some point in the future: a favorable judiciary.