The death of Justice Ruth Bader Ginsburg on September 18, 2020, followed by the rapid and one-sided confirmation of ultra-conservative Justice Amy Coney Barrett on October 26 by a 52-48 Senate vote (all Democrats opposed), and the November 2020 election of President Joseph Biden, lent a jolt of urgency to an intensifying debate about the need to reform the U.S. Supreme Court. This has further heightened since the Court’s 6-3 majority judgment, issued in June 2022, in Dobbs v. Jackson, Footnote 1 ending the fifty year recognition of abortion as a right under the federal Constitution and generating uncertainty regarding the continued recognition of other rights on shared doctrinal grounds (e.g. the rights to contraception and same-sex marriage).Footnote 2 Mark Tushnet noted in April 2019 that structural reforms like courtpacking are firmly back on the political agenda “in ways they haven’t been for several decades.”Footnote 3 In late 2020, scholars such as Jan-Werner Müller and Aaron BelkinFootnote 4 contended that, in order to save U.S. democracy, the only option would be “to fight fire with fire” by breaking the norm against packing—in other words, breaching democratic norms for democratic purposes.Footnote 5 This raises a question that is rarely posed outside of transitions from authoritarian to democratic rule: Can we speak of “good” court-packing? In contemplating the democratic legitimacy of such measures, we evidently need to be capable of more than simply trusting the democratic bona fides of their proponents or treating the propriety of such measures as self-evident. After all, “trust me” is the by-word of every canny autocrat, or would-be autocrat, who presents democracy-undermining measures as positive democratic reform. Even if we truly believe in the good faith of any proponent, reforms must be defensible to a broader audience beyond their supporters and on the basis of more objective criteria.
This article rests on four fundamental methodological premises that are of broad relevance for comparative constitutional law. First, it is argued that, to date, the framing and terms of the U.S. court-packing debate, crystallized in analysis from the Biden administration’s bipartisan Commission on Supreme Court Reform,Footnote 6 have obscured the “transitional” dimensions of the overarching reform context as one of (highly contested) democratic restoration in response to democratic decay. Analysts have generally focused on “time travel,” focusing on domestic historical precedents in analyzing whether court-packing can be justifiable. This can cast the debate as merely the latest phase in a long-running battle between those who wish to preserve or restore the longstanding system of judicial supremacy, supported by legal constitutionalists, and supporters of some form of political constitutionalism, or at least rebalancing of power to the elected branches of government.
Yet, many proponents of packing have emphasized the high stakes, with court reform relating not simply to democratic improvement but as necessary to stem democratic decay—“the degradation of American democracy”—and sufficiently dire circumstances of democratic crisis.Footnote 7 Constitutional repair or democratic restoration (treated here as synonyms), in this sense, means system change, not merely the recreation of a status quo ante. This evidently does not mirror more recognizable contexts of democratic decay, such as Hungary or India, or older transitions from authoritarianism to democracy in states such as Spain, Poland or Brazil. However, resonances with these contexts come into sharper focus when one considers the strongly contested nature, quality, and trajectory of contemporary U.S. democracy. At the time of writing, the U.S. has recently experienced a presidential term noted for intensifying curbs on core democratic rights, especially voting rights, acutely controversial judicial appointments, a sharply contested presidential election, including vitriolic contestation of the legitimacy of the electoral system, violent disorder in the seat of government, generally declining scores in leading democracy assessments,Footnote 8 and the election of a new government with a central policy platform to repair the democratic system.Footnote 9
Second, that this is no ordinary debate on reform of the constitutional order, or constitutional mega-politics, means that, even for those willing to engage in “space travel” (looking abroad for guidance) it is hard to find instructive comparative examples in recent history from among the world’s long-established liberal democracies, such as the United Kingdom, Australia, Germany, Ireland, or Japan. Other states that have experienced courtpacking in the context of both democratization and democratic decay have been paid little attention, presumably on the basis that they are viewed as too different to warrant closer analysis. For instance, working documents from the Presidential Commission on Supreme Court Reform make passing reference, in just one paragraph, to court-packing as a “worrying sign of democratic backsliding” in Argentina, Venezuela, Turkey, Hungary, and Poland.Footnote 10 Identifying useful comparators requires a significant shift in our view of what are appropriate states for comparison. Comparativists have long tended, implicitly or expressly, to either separate the Global North from the Global South—evidently contested categories in themselves—or if engaging in comparison, have tended to view the former as the main source of insights.Footnote 11 However, democratic flux across both the Global North and South, and especially the degradation of democratic rule in the former, heightens the instructive value of Global South experiences. This is not to argue that the U.S. belongs in the same category of political system as states such as Turkey or Argentina, but to propose that these contexts—featuring acute democratic crisis and contestation, and perceptions of institutional failure—can provide insights relevant to the U.S. debate and challenges, despite the obvious differences in their political and constitutional development.
Third, to achieve meaningful comparison between the U.S. and these unlikely comparators, and to identify how the U.S. debate is relevant internationally, requires us to sharpen our analytical tools and intellectual frameworks for distinguishing democratic restoration in the context of democratic decay as a category of constitutional transition distinct from two other categories—“ordinary” constitutional reform and full-blown democratic transition from authoritarianism—which raises a suite of distinctive challenges and additional layers of complexity and contestation. This analysis requires us to draw on, and connect, insights across four somewhat overlapping but still unhelpfully siloed research fields: Democratic decay, constitution-building, democratization, and transitional justice.Footnote 12
Fourth, even for those resistant to the second proposition, a closer analysis of the theoretical, constitutional and practical challenges posed by the U.S. court-packing debate from a comparative perspective appears timely and worthwhile, given that democratic restoration, including but not confined to the reform of apex courts, is becoming an emerging global challenge: Elections in states such as Hungary, Poland, Turkey, Brazil and elsewhere have turned minds to the challenge of constitutional repair in the event that anti-democratic incumbents are ousted. It may also be relevant to other ongoing or potential democratic transitions, such as the Ukraine, where corruption in the courts may, in a post-conflict scenario, require personnel change to produce a more legitimate and functional apex court.Footnote 13 Questions of norm-breaking for the purposes of democratic restoration include the Hungarian opposition leadership’s talk, before the 2022 parliamentary elections, of “regime change” through restoring checks and balances by a referendum bypassing the amendment process in the Constitution imposed by the Fidesz government in 2011—described as a “dangerous game” of “breaking legal continuity” by the constitutional scholar Andras Jakab.Footnote 14 Questions about direct democratic restoration in Poland—where the original democratic 1997 Constitution remains in place—focus on unwinding key measures, laws, and institutional transformations enacted by the sitting Law and Justice Party (PiS) government.Footnote 15 Engaging with this complexity also presents something of a retort to simplistic arguments in other contexts of democratic decay, such as Brazil, for simple replacement of the existing constitution to improve democratic performance, as proposed by Ackerman.Footnote 16
This article therefore seeks to add to the U.S. debate and explore the wider questions it poses through “space travel.” The article looks to two case-studies where packing ostensibly aimed at strengthening the democratic system suggests the possibility of “good” packing, but where the context and implementation of the reforms ultimately negated any positive impact: Turkey, where the Constitutional Court was overhauled in 2012;Footnote 17 and Argentina, where well-intentioned packing of the Supreme Court in the 1980s set a dangerous precedent. In its argument, this study builds on the rapidly expanding literature on court-packing, particularly Kosař and Šipulová’s 2020 work conceptualizing packing through a taxonomy of the principal techniques employed by governments to alter the composition of an existing court and, thereby, achieve a “politically friendly composition” on the court, summarized in the next section.Footnote 18 Importantly, while the democratic arguments for court-packing in states such as Hungary or Poland since 2010 have been weak, Turkey and Argentina present more complex scenarios of top courts that simply could not continue in their existing form and where reform was justifiable in liberal-democratic terms. The analysis lingers longest on the Argentine context as offering key insights, especially that, once introduced in good faith for democracy-strengthening purposes, court-packing can set a problematic precedent to be abused by later presidents, and that taking little care regarding implementation can trigger a packing spiral with a highly negative impact on the court and distortive effects on development of its jurisprudence.
By providing a thicker account of two court-packing case-studies, and drawing on a range of relevant research fields, this article sets out a framework for considering the democratic legitimacy of proposed reforms, comprising five dimensions: (i) democratic context— assessing court-packing against the wider political context and democratic trajectory of the state; (ii) articulated purpose—the need for a full articulation of the reform’s aims and to what degree it is exceptional; (iii) reform options—especially whether a different or less controversial reform can achieve the desired result; (iv) reform process—the salience of an open, pluralistic, and participatory process for reform; and (v) repetition risk—how to ensure that good faith reforms do not trigger retaliation. For instance, in the U.S. case, the risk that single-instance “good” packing is not followed by a recurring cycle of retaliatory and remedial packing. There is no claim that this framework is comprehensive or airtight; it is merely intended to set out a clearer basis for analysis and to foreground important dimensions of the challenges democratic restoration reforms pose for constitutional law, which have wider application and merit closer attention.
This argument is pursued in five parts. Section B briefly sets out the contours of the court-packing debate in the U.S. and places it in global context. Section C discusses the ambiguous nature of court-packing in Turkey in the 2010s, which points to the potential for “good” court-packing but emphasizes the importance of the reform context and process. Section D sets out the background to packing of the Supreme Court in Argentina by highlighting key aspects of the state’s political and constitutional development, while Section E analyzes court-packing measures in Argentina since the restoration of electoral democracy in 1983; first as a justifiable remedy to reform an authoritarian-era organ in the absence of other reform options, and later as a return to a negative pathology. Finally, Section F applies the insights from the two case-studies and the five-dimensional analytical framework to contemplate the dilemmas and complexities of constitutional repair in the contested U.S. context, and its lessons for the world.
B. The U.S. Debate in Global and Historical Context
It is impossible to capture the full breadth of the U.S. court-packing debate here, and the global and historical contexts in which it is taking place. This section merely aims to present the essentials of this debate, its key tensions, and how arguments for packing in the U.S. context are differentiated from recent court-packing measures in states such as Hungary and Turkey.
In the U.S., the court-packing debate famously harks back to the 1930s, with President Franklin D. Roosevelt’s roundly defeated plans to pack the Supreme Court, then viewed as the main institutional obstacle to major structural socio-economic reforms. In recent decades, the idea of packing had receded to the status of historical, but not contemporary, importance.Footnote 19 However, packing—and the wider debate surrounding reform of the Supreme CourtFootnote 20—has returned to the fore as the Court’s role as a central vehicle for progressive reform has been increasingly called into question at the liberal-left side of the political spectrum, and as the composition and legitimacy of the Court has also been affected by politically controversial maneuvers aimed at ensuring Republican party control of judicial appointments, all against a context of Republican presidents having appointed fourteen of eighteen justices since 1969.Footnote 21 Packing of the Court can be viewed as an attempt to achieve a more representative court reflective of the main political cleavages across the nation, and even as a remedial measure—a “righting of wrongs” given Senate Republicans’ refusal to consider Merrick Garland’s nomination in 2016. Some, of course, see it as a dead end: Frederick Schwartz, who favors a constitutional amendment to enshrine eighteen-year non-renewable term-limits, decries it as a “short-term partisan legislative step” that “cures nothing.”Footnote 22 Others have observed that packing would simply elicit a tit-for-tat response, such as the opposition demoting “packed” judges to the lower courts upon regaining power.Footnote 23
On April 9, 2021 the Biden administration announced the terms of reference of a thirty-six-member bipartisan commission comprising leading scholars from constitutional law, history, and political science, including some members previously active in civil society organizations such as the American Civil Liberties Union (ACLU). The body was tasked with producing a report within 180 days of its first meeting and with holding public meetings to hear the views of experts, groups and interested individuals holding varied views on the issues of reform:
The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.Footnote 24
The Commission’s 288-page final report, issued in December 2021, did not recommend any specific course of action; it merely identified significant bipartisan support for introducing non-renewable eighteen-year term limits, noting Congress’s power to expand the Court, and “profound disagreement” concerning the latter option.Footnote 25
Of course, if this were another country where constitutional amendment was easier, and in the context of a broader political transformation spurred by democratic transition or peace-building, reform possibilities for an apex court this contested might include establishing a new institution; either a new iteration of the Supreme Court, as in Kenya, a new constitutional chamber in the Supreme Court, as in Estonia or Nepal, or an entirely new constitutional court, as seen in Germany in the 1950s, or Hungary and South Africa in the 1990s.Footnote 26 In rarer circumstances still, one might allocate a number of foreign judges to sit on the Court, as we see in Kosovo,Footnote 27 or assess judges’ suitability to continue sitting individually, as in Kenya after adoption of the 2010 Constitution.Footnote 28 Extraordinary measures for extraordinary times. Evidently, such options are off the table due to the rigidity of the U.S. Constitution, the totemic socio-political and cultural stature of the Supreme Court, and the different democratic context. Yet, despite clear dissimilarities, the current U.S. context, focused on institutional reform after acute democratic crisis, raises problems that resonate with these contexts.
Four key proposals in the U.S. reform debate show how, shaped by legal and political constraints, proposals range in scope and nature: Packing, term-limits, selection, and jurisdiction-stripping.Footnote 29 Proponents present packing as legally easier to achieve than eighteen-year non-renewable term-limits because it would require no more than statutory change, although in both cases the requirement for constitutional amendment is contested. Packing is also presented as offering more immediate political benefits compared to termlimits, whose impact would unfold over a period of decades. Some packing proposals seeks to achieve the best of both worlds. Court “balancing” proposals include the appointment of two federal judges designated by statute to sit on the Supreme Court for eighteen years, with a political commitment to appoint one liberal—to balance the appointment of Neil Gorsuch—and Merrick Garland, whose appointment was kiboshed at the end of President Obama’s presidency in 2016.Footnote 30 Other options seek to depoliticize the Court by focusing on selection: Lottery selection would involve appointing all existing 179 federal judges as associate justices of the Supreme Court and forming nine-member Court panels by random selection from among the nine current justices and the expanded pool of judges, ordinarily reshuffling panels every two weeks.Footnote 31 Proposals for jurisdiction stripping—which form part of broader disempowerment proposals such as supermajority rules for finding laws unconstitutional—argue that Article III, Section 2, Clause 2 of the Constitution explicitly empowers Congress to remove the Supreme Court’s appellate jurisdiction over specific issues or cases,Footnote 32 and that removing jurisdiction concerning contentious issues such as abortion could help to depoliticize the Court.Footnote 33
Beyond the technical details of reform options and their political feasibility, this debate is animated by deeper normative positions regarding the democratic and constitutional legitimacy of engaging in norm-breaking; namely, the norm against packing an independent court to achieve defined political ends. Müller, writing in September 2020, argued that Senate Republicans’ rush to replace Justice Ginsburg with a “conservative hardliner” is not only at odds with their refusal to consider Garland’s appointment in 2016, but occurs in a wider context in which the Republican Party is now willing to do anything to retain power, while the Democratic party remains constrained by its commitment to the rules and even hope for bipartisanship. As he frames it, Republicans have gained an advantage through a willingness to engage in “constitutional hardball”—technically permissible practices under the Constitution that violate existing constitutional understandingsFootnote 34—and the only option left to Democrats is to “fight fire with fire” through, principally, expanding the Supreme Court. He emphasizes that packing would form part of broader democratic reforms such as stronger protections for voting rights, abolishing the filibuster to render the Senate more representative, and granting statehood to Puerto Rico and Washington, DC.Footnote 35
In this way—whether we accept the argument or not—proponents of court-packing proposals in the U.S. seek to differentiate these measures from the negative experiences of court-packing in other countries. Many authors also eschew the term “packing,” preferring “court expansion” or “re-balancing.”Footnote 36 Recent court-packing in states such as Turkey, Hungary, and Poland has been portrayed as a clearly identifiable first step in an “authoritarian playbook” pursued by democratically elected but anti-democratic executives to degrade the democratic system by bringing independent institutions to heel. In other words, court-packing is itself approached as a strong indicator that the democratic system is undergoing negative transformation. As Sadurski explains in the Hungarian context:
[T]he capture of the Constitutional Court proceeded through changing the rules for nomination of judges, then by restricting the court’s jurisdiction, and finally by court-packing, which included an increase in the number of judges, thus producing a safe Fidesz [ruling party] majority on the court.Footnote 37
In Poland, Sadurski has described the packing of the Constitutional Tribunal by the ruling Law and Justice (PiS) party as a key part of the state’s “constitutional breakdown,” which was preceded by a sustained government disinformation campaign casting judges as an unresponsive elite tied to the Communist era.Footnote 38 This was not a straightforward process of expanding the court to ensure greater loyalty to the ruling party, but a complex suite of measures, including replacement of constitutionally-appointed judges by judges not appointed according to the constitutional procedures, forcing certain judges to take accrued holiday leave, and lowering the retirement age for judges; the latter deemed by the Court of Justice of the European Union (CJEU), in a judgment of June 2019, to be incompatible with the principle of “irremovability of judges” as a core feature of judicial independence.Footnote 39
As regards reform context, these changes all occurred in an environment where the capacity of every institution to constrain the executive was weakened in a short period of time, through a bewildering flurry of mutually reinforcing measures, including: The creation of two new chambers in the Supreme Court with power over politically sensitive matters, including election results; replacement of virtually all court presidents; refusal to publish adverse judgments of the Constitutional Tribunal deeming the law reforming the Tribunal to be unconstitutional; constraining the opposition in parliament; enhancing governmental control of State broadcasters; changing the leadership across the civil service; and establishing “mirror bodies” by statute to displace constitutional bodies such as the National Council of Radio and TV Broadcasting.Footnote 40 Moreover, in terms of the reform process, the procedure for achieving these anti-pluralist transformations was itself exclusionary. In Poland, the required legislation was rammed through parliament in an “atmosphere of secrecy”Footnote 41 by circumventing meaningful discussion and scrutiny: Opposition MPs’ speeches being limited to thirty seconds, for example.Footnote 42 As for reform effects, the result was initially a “paralysed court,”Footnote 43 and later, a court that operates as a “government enabler” rather than any form of constraint.Footnote 44
Almost three decades ago, and long before Vladimir Putin took power in 2000, perhaps one of the surest signs that the Russian democratic experiment was souring was the packing of the Constitutional Court in 1993 alongside the adoption of Yeltsin’s new Constitution. As Epstein, Knight and Shvetsova have observed, the new iteration of the Court was “now composed of two sets of Justices—members of the old Court (many of whom opposed Yeltsin in the previous period) and those who were added after the adoption of the new Constitution as part of Yeltsin’s reform.” Although not entirely captured by the executive, the new Court was “somewhat closer to Yeltsin than its 1991-93 counterpart” due to the addition of the new justices.Footnote 45 The move was a response to the Court’s interventions in the struggle for power allocation between the president and parliament in the early 1990s, which famously reached its nadir when Yeltsin sent tanks to shell the parliament building, risking the potential for civil conflict. The 1993 Constitution was produced in a strongly executive-controlled process sidelining parliament—which had previously refused to adopt a compromise draft—through a hand-picked constitutional assembly followed by a constitutional referendum passed by a 58.4 percent majority, with a 54.8 percent turnout.Footnote 46 Even earlier in the 1950s, figures within the Adenauer government of West Germany were eager to pack and control the Federal Constitutional Court in the context of a bitter conflict surrounding ratification of the European Defence Community (EDC) Treaty with France, a measure only averted through the French parliament voting down the treaty.Footnote 47
Court-packing through unilateral action continues to spread today as governments with anti-democratic agendas worldwide take aim at independent institutions. Impeachment has been employed to remove the Chief Justice of Sri Lanka in 2013 under the strongman Rajapaksa government, and against Chief Justice Maria Lourdes Sereno in 2018, a vocal critic of another strongman, President Duterte of the Philippines.Footnote 48 In Brazil, a constitutional amendment proposed in October 2019 by the deputy leader of President Bolsonaro’s party, the Social Liberal Party (PSL), in the House of Deputies sought to reverse a constitutional amendment of May 2015 that raised the retirement age of Supreme Court justices from seventy to seventy-five years, raising concerns about attempts to pack the Court given the overtly illiberal and anti-democratic nature of the Bolsonaro administration.Footnote 49 In each case, it is necessary to look at the measure in context. In Sri Lanka, for instance, impeachment has been characterized as a government reprisal against Supreme Court judgments upholding human rights and blocking the establishment of a new government department permitting direct executive control of welfare payments. Perhaps most tellingly, the Chief Justice was replaced by an advisor of the President. The broader international context, too, merits attention: In this case, the impeachment was strongly criticized by the International Commission of Jurists (ICJ).Footnote 50
The norm against political interference with the courts is evidently not just a convention of the U.S. constitutional order. It is one of the totems of the narrative of democratic superiority that reached its fullest expression during the Cold War. It has been constructed in an oppositional manner, in the sense that political interference with the courts is generally viewed as something despots, tyrants and autocrats do; one need only think of the concept of telefonnoe parvo (“telephone justice”) in contemporary Russia, which captures the direct political pressure felt by judges and the obstacles facing individuals in obtaining independent and impartial justice.Footnote 51 By contrast, in the democratic tradition, it is portrayed as something generally not done. Institutionally, it is an ideal that marks out the lingering socialist-era institution of the procurator in post-Soviet states such as Russia, Belarus or Ukraine—invested with significant powers of general supervision of the courts—as difficult to fit into a democratic framework.Footnote 52 Indeed, Partlett describes the post-1989 abolition of such supervision in the Baltic states as reflecting “a strong desire to move away from Russian and Soviet legacy and return to their Western European roots.”Footnote 53 It is, in short, one of those bedrock ideas that permits us to imagine a common civilizational inheritance of liberal constitutional democracy shared by democracies worldwide.
Yet, a comparative perspective on court-packing reveals significant nuance regarding its democratic legitimacy. As Kosař and Šipulová recently observed, “court-packing has flourished all over the world” but our conceptual understanding of packing is underdeveloped.Footnote 54 Defining packing as “an intentional irregular change in the composition of the existing court, in quantitative as well as qualitative terms, that creates a new majority at the court or restricts the old one,” they highlight the problematically thin line between justifiable reforms aimed at improving the functioning of the judiciary and illegitimate interference with the courts. They also set out a taxonomy of mechanisms employed, and key distinctions to look out for in determining on what side reforms might lie. Thus, while the term “court-packing” and its most famous historical context in 1930s U.S. politics tends to evoke gambits to increase a court’s size—“expansion,” as seen in Hungary and Turkey—two key additional techniques are employed: Decreasing a court’s size—“emptying,” as seen in Poland in the 2010s, or the US in 1801, when the Supreme Court was reduced from six to five members;Footnote 55 and “swapping”—replacing sitting judges to achieve a change in personnel rather than size, as seen in post-2016 Turkey. Some states have seen varying measures at different junctures; for example, the Supreme Court of Argentina has experienced emptying, expanding, and swapping since the 1950s. Measures taken can be formal, such as constitutional or statutory amendment, or informal, such as offering sitting judges monetary or promotional incentives to retire, or forcing judges to take vacation; direct, where court composition transformation is the principal purpose of reform; or indirect, where composition change is a welcome but secondary benefit of other reforms.Footnote 56
Where these maneuvers can, in hindsight, be confidently portrayed as part of a broader plan to hollow out institutional constraints on executive power, they are often pursued alongside additional measures, such as jurisdiction-stripping. A good example is Hungary, where the Constitutional Court’s jurisdiction was restricted under a new constitution—the Basic Law of 2012—followed by a constitutional amendment of March 2013 annulling all of the Court’s decisions prior to that date.Footnote 57 Evidently, no government aiming to achieve a friendlier court is express about its aims: Measures are inevitably presented as necessary democratic reforms to improve the efficiency of the court, or its legitimacy; as seen in Poland, where a central argument has been the need to remove Communist-era judges from the courts.Footnote 58
It is also important to emphasize that, in discussing court-packing, Kosař and Šipulová canvass a wide diversity of states. This includes; fully authoritarian states like Bolivia or 1960s Egypt; recognized liberal democracies like Poland and Hungary that have experienced acute democratic degradation in recent years; and states navigating shifts from undemocratic rule to a troubled democratization process featuring a complex mix of indicators of democratization and democratic reversal simultaneously, such as Argentina in the 1980s or Turkey since the early 2000s. Evidently, different overarching political contexts will color even our initial assessment of court-packing measures. Court-packing in an authoritarian state is unlikely to be independence-enhancing. By contrast, some form of packing can be one of the only responses to remake the courts in the new democratic image of the state following, or during, a democratic transition; contexts in which, as the transitional justice scholar Ruti Teitel argues, a lesser fidelity to ordinarily cardinal precepts such as consistency and predictability in the law can be tolerated,Footnote 59 especially if presented as a single-instance “once and done” measure that is not to be repeated, and in the context of a relatively clear new constitutional settlement. In more ambiguous contexts, where the overall democratic quality and trajectory of the state is contested, as it is in the U.S., it is even more difficult to assess court-packing proposals and they cannot simply be rejected outright as—or even framed as—an anti-democratic move. Nor, by turn, can packing be treated as self-evidently required due to the perceived partisan nature of the Court, as Belkin seems to suggest.
One way of thinking through the legitimacy of court-packing in the U.S. context is to engage in “time travel.” In a recent study, Rivka Weill analyzes the current proposals against U.S. constitutional history, arguing that it is both empirically and constitutionally correct to say that a president can nominate a justice to the Court at any point during the presidency; that it is ultimately the Senate’s responsibility to police for frustration of the popular will in such nominations; that the clear convention has required bipartisan consent for nominations in an election year; and that court-packing itself can be understood as a mechanism rooted in popular sovereignty to off-set partisan capture of the Court, which forms part of the intentional design of the Founding Fathers. The implication of this is that serious moves toward partisan capture can legitimize, if not invite, packing as a counter-measure.Footnote 60 Thomas Keck, also based on historical experiences of court-packing in the U.S., expressly distinguishes “constitutional hardball” court-packing in service of democratic erosion from packing in service of constitutional repair. Discussing examples including Federalists’ packing of the courts in advance of Jefferson assuming the presidency on foot of the 1800 elections, and Jefferson’s subsequent undoing of these measures by ousting the “packed” judges, he argues:
When a governing regime intentionally packs the courts with partisan loyalists, and those judges then use their power in explicitly partisan ways, the regime’s supporters cannot credibly appeal to norms of judicial independence when an opposition regime tries to un-pack those courts.Footnote 61
Yet, in his own historical analysis, while noting that the Supreme Court’s size has been altered seven times, Joshua Braver sounds a strong note of caution, emphasizing that past packing experiences before the Civil War occurred in a very different historical and institutional context, that packing has not occurred for over 150 years, and that the 1801 instance involved repeal of a previous law that had reduced the Court’s size, accompanied by express condemnation of packing. He offers that present arguments for a court-packing bill raise unprecedented risks due to the present context of hyper-polarization, especially compared to the one past example of “successful” packing in the 1860s where the president’s lack of support from either party produced a low-risk scenario. Defining courtpacking in a similar way to Kosař and Šipulová—as “the manipulation of the Supreme Court’s size primarily to change [its] ideological composition”—Braver, like Schwartz and others, perceives packing by the current administration as presenting an unacceptable risk of incentivizing the opposition to pack when they next gain power.Footnote 62
In considering how we can achieve a thicker understanding of legitimate packing, its risks, and what this tells us about democratic restoration in contexts of democratic decay more widely, the next sections seek to build on these “time travel” accounts by engaging in “space travel”; analyzing the impact of court-packing and purges on courts in Turkey and Argentina in detail, both contexts challenging the presumptive starting point that packing is antidemocratic. In both cases, court-packing has been initially justifiable but has become inextricably captured by deep-seated or developing pathologies of the political system.
C. Turkey: Ambiguous Court-Packing in an Increasingly Authoritarian Context
The Turkish context presents an illuminating instance of court-packing that is easy to judge as anti-democratic with the advantage of hindsight, but whose nature was far more nuanced than straightforward political capture of the Constitutional Court. The case-study is an illuminating example where expanding the court could be justified as necessary as part of a broader transformation process to achieve a liberal-democratic system with appropriate respect for popular control and elected actors, but where the manner and context of reforms undermined the apparent potential of “good” court-packing.
I. Background to Packing the Constitutional Court (1961–2012)
The Constitutional Court was established in 1962, not long after a number of other post-war European constitutional courts: Austria (1945), Germany (1951), and Italy (1956). However, being a creature of the post-coup Constitution of 1961, its role in the Turkish constitutional order has differed in significant respects from the roles of these other courts in their respective states, due to the particular historical, constitutional and political contexts in which it was established and in which it operated for its first fifty years.
Three factors may be viewed as particularly salient. First, the very founding of the Turkish State was based on the aim of producing a modern and secular polity, with the result that certain values, such as secularism, have been central pillars of each successive constitution and have rested in significant tension with other values such as popular sovereignty and individual rights protection. Second, the power framework in the State has not mirrored the classic tripartite division of government power among the executive, legislative and judicial branches. Rather, alongside these powers, the military has played an overarching tutelary role, accompanied by the civilian State bureaucracy as representatives of an elite wedded to the foundational values of the Republic—reflected in a conceptual division of the state between the “permanent” civilian and military state (devlet) and the “changeable” elected organs of government (hikimel).Footnote 63 Where these values have been viewed as threatened by developments in the electoral arena, the military has at crucial junctures seized the reins of power through coups d’état, in 1960–61, 1971 and 1980–83, twice adopting a new constitution, in 1961 and 1982. Third, the lack of any direct complaint mechanism led to a perception of the Court’s primary role as guardian of the founding values of the Republic rather than guardian of individual fundamental rights.Footnote 64 Yegen described the post-1982 court as “a politicized Constitutional Court whose members are appointed solely by the president and acts as a mechanism of tutelage.”Footnote 65
The Court’s case-law from 1961 to 2012 was also strongly criticized by many observers as failing to provide sufficient protection to individual rights and as blocking liberalizing reforms. Most strikingly, the Court made astonishingly frequent use of its power to ban political parties, banning no less than twenty-five parties in twenty-six years on grounds of threatening secularism or the state’s territorial integrity, including the four-million-member Refah Partisi (Welfare Party) in 1998.Footnote 66 Two decisions in 2008, concerning removal of the ban on headscarves in universities and banning of the ruling Justice and Development (AKP) Party, placed the Constitutional Court center stage in the tension between guarding the founding principles of the State and democratic demands for liberalization of the State apparatus, pushed by the AKP Party, which first entered government in 2002. The Court’s assertion of the power to assess the constitutionality of properly-enacted constitutional amendments, and its decisions finding those amendments invalid, while upholding the AKP’s validity by the slimmest of margins, placed the Court at the center of the political structure, generated tensions with other State powers, and drew significant criticism from the public and civil society.Footnote 67
II. Democratic Court-Packing?
It is against this background that sweeping reforms to the Court, including expansion of its membership, were introduced. In 2012 major structural changes were made to the Court as part of a package of reforms to the 1982 Constitution adopted in 2010 and approved in a popular referendum on September 12, 2010. Ostensibly aimed at improving access to the Court and enhancing the system of rights protection in order to address the high number of applications taken against Turkey to the European Court of Human Rights, the reforms permitted direct individual applications to the Court for the first time in its fifty-year history. The individual application system formed part of a package encompassing twenty-six constitutional amendments focused in large part on addressing the most illiberal elements of the 1982 Constitution by constraining the tutelary power of the military; for example, reducing the jurisdiction of military courts, initiating significant judicial reform, and enhancing access to government records and individual privacy rights against State interference.Footnote 68
As regards reform context, these changes were just the latest in a succession of seemingly democracy-strengthening reforms that had taken place since the 1990s. After ending the State’s monopoly on television and radio broadcasting in 1993, a suite of reforms had been introduced in 1995: Eliminating the rationale for the 1980 coup from the Constitution’s preamble, removing bans on the political activities of trade unions, associations, and public professional organizations, and lowering the voting age to eighteen. After eliminating military judges from the State Security Courts in 1999, another more widespread raft of reforms in 2001 amended 33 Articles of the Constitution, and the preamble, to remove the general restrictions on rights and freedoms, enhance civil and political rights, broaden the scope of economic and social rights, shorten pre-trial detention, remove the ban on the Constitutional Court’s power to review laws passed under the previous military regime, and remove the phrase “language prohibited by law” from the constitutional text. A further round of reforms from 2002 to 2006 abolished the state security court, lowered the threshold age for holding public ofﬁce, and amended Article 90 of the Constitution to enhance the status of international human rights law in the domestic constitutional order by providing for international law to prevail in the event of any clash.Footnote 69
Based on the expectation of a higher workload, the 2012 Constitutional Court reforms increased the Court’s membership from eleven permanent and four alternate judges to seventeen permanent judges without alternates; a case of straightforward expansion under Kosař and Šipulová’s taxonomy. This was accompanied by institutional restructuring: The Court, which previously heard all cases as a plenary court, introduced two Sections and six Commissions.Footnote 70 Membership of the High Council of Judges and Prosecutors (HSYK), with very significant powers over judicial officers, was also expanded. This court expansion has been presented in recent years as a clearly negative step. As Ozan Varol put it in 2018, expansion “permitted the government to pack [the Constitutional Court and High Council] with members favorable to its ideology.”Footnote 71
Yet, at the time, despite concerns raised—for example, the continuing membership of the Minister for Justice on the HSYKFootnote 72 —to many observers this did not appear as an instance of negative court-packing due to the broadly positive overarching context of political and constitutional reform. For Aslı Bâli, writing in 2013, the move brought “greater representation of the judicial and legal profession onto the Court in line with democratic judicial appointments procedures in Europe and beyond.”Footnote 73 Venice Commission analysis of the reform plans identified various deficiencies, such as the lack of full clarity as to whether abstract constitutional review of laws and regulations was excluded, but did not center on the expansion of the Court’s membership as a problem per se.Footnote 74 As for reform options, unlike many states where democratic transitions from 1945 onwards included establishment of an entirely new constitutional court as a central institutional innovation, the presence of an existing constitutional court seemed to narrow the available reform options: Expansion of the Court’s membership was more politically feasible than a total re-founding.
It is important, nevertheless, to emphasize the reform process itself; especially the manner in which the breakneck speed of reform was generally approached. As Bozkurt has noted, the hallmark of then Prime Minister Erdoğan’s governance style has been a “my way or the highway attitude,”Footnote 75 unilaterally driving the reform agenda without wider consultation with stakeholders, including opposition forces and those directly affected by reforms. Constitutional reforms and legislation tended to be drafted by a small cadre of advisers in the Prime Minister’s Office and dropped on Parliament with little warning or time for debate.
A focus on reform effects further complicates the picture. The Court’s jurisprudence after the reforms seemed to reflect, at least to some extent, an independent organ capable of effectively guarding rights and the democratic system; arguably departing somewhat from the Court’s previous role as a guardian of the Kemalist order. The Court delivered a steady stream of important decisions and by July 2014—less than two years after the introduction of individual applications—the Court had already delivered 165 judgments finding violations of individual rights.Footnote 76 These judgments appeared to transform its role by strongly upholding free speech protections, the right to fair trial, individual autonomy, the right to privacy and the right to equality, among others.Footnote 77 Members of the Court deemed the new mechanism “an effective instrument for protecting basic rights”Footnote 78 and a “promising” development.Footnote 79 Over seventy percent of these judgments (119) concerned the right to fair trial, followed by the right to personal liberty at twelve percent (twenty-one judgments), with the remaining eighteen percent. Concerning the rights to life, physical and mental integrity, political participation, privacy, freedom of religion and freedom of expression.Footnote 80
In July 2014, Judge Arslan, elected President of the Court in 2015—and admittedly not a disinterested observer—set out a number of landmark cases in a speech delivered to a conference in Strasbourg.Footnote 81 In the Twitter and Youtube judgments, decided in Spring 2014, the Court ruled separate State-imposed blanket bans on access to Twitter and Youtube to be invalid on the basis that they were not prescribed by law. In the Twitter case, the Court found the ban, as imposed by the relevant administrative body, to have no basis in law.Footnote 82 By contrast, in the Youtube judgment, drawing on a relevant Strasbourg decision, the Court found the law on which the ban was based to lack the requisite character of certainty and foreseeability. Also in line with Strasbourg jurisprudence, the Court emphasized the crucial role played by the internet and social media in democratic societies as a means of freedom of expression.Footnote 83 In the Öcalan case,Footnote 84 decided in 2014, the Constitutional Court again underlined the importance of free speech in a democratic society, declaring the official confiscation and destruction of the book Kurdistan Revolution Manifesto by the Kurdish political leader Abdullah Öcalan to be a disproportionate restriction of his right to freedom of expression. In response to State justifications concerning the identity of the author and the book’s purpose to propagate a terrorist organization, the Kurdistan Workers’ Party (PKK), the Court noted that the overall message of the book was a call for a peaceful solution to the Kurdish question, and State action was not a proportionate measure under the legitimate aim of protecting national security and public order.
The Court also handed down a number of landmark judgments concerning the right to a fair trial. In one case, the Court declared the practice of applying the maximum five year term of imprisonment under the Criminal Code separately to each crime committed by a convicted defendant, which led to excessively long periods of imprisonment, to be an unconstitutional infringement of the right to liberty.Footnote 85 In a subsequent case concerning multiple applications by detained MPs, the Court highlighted the importance of political participation in a democracy. Ruling that the MPs’ detention impeded representation of their electorates, the Court held that the restrictions imposed were disproportionate and not necessary in a democratic society.Footnote 86 In June 2014, the Court in the Sledgehammer case ruled that the trials of 230 applicants convicted of an attempted military coup d’état to remove the AKP government violated two aspects of their right to fair trial—the right to a reasoned judgment and the procedural principle of equality of arms—due to the trial court’s handling of suspect evidence and refusal to hear certain witnesses.Footnote 87
For its part, the Strasbourg Court ruled that the mechanism provided, in principle, an effective judicial remedy within the meaning of Article 6 of the European Convention on Human Rights (ECHR)Footnote 88 and the number of applications to the Strasbourg Court steadily decreased. Perhaps most importantly, it has been observed that the Turkish public had “great expectations” of the expanded Court and the individual application procedure after its introduction. The number of individual applications certainly seemed to reflect significant interest, and perhaps hope, in the new procedure amongst the public and civil society. Applications were made to the Court immediately after introduction of the procedureFootnote 89 and as early as January 20, 2014, a total of 11,974 individual applications had been submitted.Footnote 90 This number rose to 32,000 by January 2015.Footnote 91
III. Erdoğan’s Authoritarian Turn and the Impossibility of Independence
From 2013 onward,Footnote 92 the political context became increasingly constrained for the Court as incremental and ongoing subversion of democratic rule under Erdoğan increasingly recast the governance system in a more authoritarian mold. In 2013, a major corruption investigation initiated against four cabinet ministers, their relatives, and senior bureaucrats led to AKP claims of a “coup” by the faith-based Gülenist movement—led by Fethullah Gülen, a former AKP ally—and government measures to increase control over prosecutors and the judicial council (HSYK). By 2015, the AKP government appeared increasingly vulnerable, losing its thirteen-year majority in June elections, but achieving a landslide victory in a snap election held in November, after a concerted campaign to stoke polarization and collapse the fragile unity of the opposition. The government also brought an end to the fragile peace process and the informal two-and-a-half year ceasefire between the State and Kurdish militants in Summer 2015. This brought a fresh wave of applications concerning curfews, killings, excesses in military action, and free speech restrictions to both the national courts and the Strasbourg Court. In February 2016, the Vice-President of the Strasbourg Court, Ayşe Işıl Karakaş, highlighted that Turkey had the highest number of complaints filed against it concerning freedom of expression violations.Footnote 93
The Constitutional Court’s rights-respecting independence provoked significant displeasure in government circles. By Spring 2015, the ruling AKP party began to raise the need to review the individual application system on the basis that it threatened to overload the Court—a claim the President of the Court, Zühtü Arslan, publicly refuted.Footnote 94 In early 2015 former President Kılıç of the Court spoke of the “intense pressure” placed on members of the Court by external powers, especially in the context of its decision to admit an individual application seeking to remove the ten percent electoral threshold for political parties to enter parliament—a key mechanism supporting the AKP’s retention of power.Footnote 95 The Court decided in January 2015 to decline to hear the application,Footnote 96 but there are various reasons for this, not least that the application appeared to require the Court to assess the constitutionality of the existing electoral law, which lies outside its competence under the individual application procedure.
On July 15, 2016, an attempted coup d’état by the military, albeit quickly ended by security forces with the assistance of members of the public, left over 250 dead and led to successive rounds of purges of the judiciary, military, state organs, and universities. Over 160,000 individuals in total were removed from their posts, many arrested and prosecuted, in many cases on questionable grounds, including some 4,000 of the country’s 21,000 judges.Footnote 97 On August 4, 2016 the Constitutional Court, sitting en banc, approved the removal of two of its seventeen members and permanently barred them from the legal profession.Footnote 98 Having removed five members of the judicial council (HSYK) shortly after the coup attempt, in April 2017, the government amended the legislation governing the HSYK to halve its membership to thirteen people, granting the president power to directly appoint six members and Parliament power to appoint the remaining seven: With the latter dominated by Erdoğan, he effectively had full control of appointments. The result was a stark aggrandizement of the executive at the expense of other sites of power and accountability.
The de facto concentration of power in Erdoğan’s hands was accorded de jure force by a 2017 referendum which shifted the parliamentary system to a strong presidential system—albeit passed by a thin fifty-two percent margin. The élite-controlled staunchly secularist governance system, which had been slowly democratizing for decades, was formally replaced by a more Islamist strongman system dominated by President Erdoğan. As Akman and Akçalı note, serious concerns had been raised about the plans beforehand as creating a “constitutional dictatorship” due to the president’s broad decree powers, as well as wide powers of appointment and parliamentary dissolution.Footnote 99
The 2017 constitutional amendments also made a number of tweaks to the courts, including: Enshrining the guarantee that the judiciary is not only “independent” but also “impartial”; expanding the Constitutional Court’s jurisdiction to receive referrals from parliament for both concrete and abstract review of the constitutionality of presidential decrees; abolishing the military court system; and lowering the number of members of the Court from seventeen to fifteen, in accordance with Article 146 of the Constitution.Footnote 100 However, in Akman and Akçalı’s view, this did little to mitigate the wholesale transfer of power to the president. The provisions empowering the parliament to petition the Constitutional Court for the annulment of decrees and to refer decrees, or selected provisions thereof, to referendum provided little reassurance in light of the president’s power to dominate and control parliament. More importantly, for present purposes, they viewed the measures as ineffective in light of “concerns about the independence of the judiciary” in practice.Footnote 101
In sum, while expansion of the Court initially appeared to improve its functioning along both the liberal and democratic axes, the room to maneuver for any independent institution in Turkey became vanishingly small in a short period of years due to a broader political context fueled by executive aggrandizement and the weakening of any independent constraints on the executive. The Constitutional Court expansion itself is not at the heart of this development. Indeed, it is possible to imagine an alternative scenario in which, in a more supportive political context, and on foot of an open and participatory constitutional reform process, the expansion of the Court could have produced, overall, a more independent Court capable of holding the executive to account, constraining its excesses, and vindicating fundamental rights. However, even then, as regards repetition risk, it would have been necessary to somehow signal that expansion itself is an utterly exceptional measure to be used extremely sparingly, and to somehow guard against normalization of the practice.
At the time of its court-packing moves Turkey was, unlike the U.S., not an established liberal democracy but recognized as a slowly democratizing state, engaged in a complex process of diminishing the power of unelected actors unresponsive to the idea and practical exigencies of popular control, and loyal to a secularist statist ideology that had too often been invoked to justify outright repression of the popular will and democratic organs. Yet, developments in recent years might be viewed as, not the subversion of this democratization process, but possibly a reflection of the true nature and trajectory of the process itself. In 2012, for instance, Bâli described the AKP and Kurdish political forces as “accidental democrats” to the extent that political liberalization was viewed as the best way to grow their political power.Footnote 102 Tombus argues that occasional demonstrations of independence by the Constitutional Court mask an overall lack of independence.Footnote 103 The potential of positive reforms to enhance liberal-democratic rule was, in this overall context, impossible to realize.
Viewed against the five-dimensional analytical framework sketched in the introduction, when contemplating the democratic legitimacy of court-packing, the Turkish context underscores the importance of understanding the overall reform context and the nature of the reform processes—whether unilateral and closed, or open and inclusive—as well as the possibility of “good” packing suggested by a finer-grained picture of the reforms’ influence on adjudication. Finally, one must consider the threats posed by the failure to place any limits or cap on the pace or frequency of reforms, which opens the door to “abusive constitutionalism” endlessly re-shaping the Constitution, law, and institutions to the benefit of the executive.
D. Argentina: Background to the Packing Saga
The Argentine experience goes back to the 1980s and has not registered loudly in the U.S. court-packing debate thus far. However, it is a source of significant insights, presenting an even clearer-cut case of “good” court-packing in the context of transition from authoritarianism to democracy, which initially produced promising results but ultimately established a problematic precedent for the post-authoritarian period that was exploited by a later president less faithful to liberal democracy and adequate constraints on executive power. This part briefly sets out the political, constitutional and institutional background to court-packing in Argentina, before discussing the experience of packing, first as a democratic remedy, and later reversion to packing as a deeply-rooted pathology in the state’s constitutional and political order.
I. Dictatorship, Autocracy, Democracy
Argentina has often been portrayed as the poster-child of stereotypical deficiencies affecting polities in South America: A history of military meddling in civilian politics, oscillation between democratic and dictatorial rule, hyperpresidentialism, strong ideological cleavages in political life, an ineffective supreme court, an underdeveloped culture of constitutionalism and the rule of law, and deficient protection of fundamental rights; all occurring within an ongoing succession of political and economic crises. However, there is much nuance beneath this stereotype.
The State had been on a trajectory of democratic and economic development similar to Western democracies until the coup of 1930, after which it became harder to distinguish civilian and military governments; Juan Perón, for example, was initially appointed to the presidency by a military junta in 1943, then elected president in 1946, yet ruled the country as a dictator throughout.Footnote 104 Following years of political violence between left-wing guerrillas and State forces from 1969,Footnote 105 the military coup of 1976 began with the strong support of the public, hoping for a return to peace and order. However, governance worsened under the military regime, which Bruneau characterizes as “arguably the most repressive in the region.”Footnote 106 A toxic combination of human rights abuses, including 5,000 deaths and 30,000 disappearances,Footnote 107 economic mismanagement, and military folly brought the regime to an end. A transition to electoral democracy in 1983 began with the financial collapse of 1981–82, the quick collapse of support for the military junta following Argentina’s decisive defeat in the Falklands War with the United Kingdom in 1982, and collapse of the regime itself in 1983. Elections held in October 1983 ushered in a Radical party—Unión Cívica Radical (UCR)—administration under President Raúl Alfonsín, which governed from 1983 to 1989; the first time the party had entered government.
Leading a party that had long stood for free elections, civilian control of the military, liberal democratic values and constitutionalism, Alfonsín’s time as president brought notable improvements in democratic governance. This included an annulment of junta decrees, an easing of censorship, and creation of the National Commission on the Disappearance of Persons (CONADEP), which documented human rights violations under the military junta.Footnote 108 However, the new government faced serious constraints. With Alfonsín’s political capital being spent on military trials, the political context precluded the adoption of a new constitution and wholesale rupture with the previous constitutional order, or widespread institutional reform. Reaffirming the 130-year-old 1853 Constitution as the “supreme law of the land”Footnote 109 entailed the paradoxical use of an old constitution to anchor a “new democratic founding” and “a new social contract,” whereby the Argentine people had definitively rejected the National Security State of the military era, renounced any further appeals to the military power, and committed themselves to democratic governance.Footnote 110 Deprived of a suite of options to reform the judiciary, such as the establishment of a constitutional court—as seen in neighbouring countries such as Brazil—Alfonsín purged the Supreme Court, as discussed in detail below.
The new president elected in May 1989, Carlos Menem of the right-wing Justicialist Party, swung the pendulum back to a more authoritarian mode of governance. Rule by presidential decree again became the norm, constitutional constraints were disregarded, constitutional restrictions on presidential re-election were removed, the Supreme Court was packed without justification, and the military leaders convicted in 1985 were pardoned in 1989 and 1990.Footnote 111 Political resistance led to a political pact on further reform (the Pacto de Olivos) between Menem and the opposition, still led by Alfonsín, followed by amendment of the constitutional text by a constitutional convention in 1994; the first significant amendments in almost forty years.Footnote 112 These aimed at curtailing the president’s power to issue emergency decrees, changing the appointment process for Supreme Court judges, and in an unusual move, leaving the existing rights provisions of the Constitution intact, but expressly according constitutional status to nine international human rights treaties. These included the Universal Declaration of Human Rights, the Convention against Torture, and the two regional human rights instruments: The American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.
These amendments, although introducing additional safeguards for judicial independence,Footnote 113 have had limited impact up to the present day—through the post-Menem period of intense crisis (1999–2003), the Kirchner era (2003–2015), and post-Kirchner era (2015–present). One of the central challenges facing development of a robust democratic system based on the rule of law has been the “original sin” of how Alfonsín approached re-making the Supreme Court in 1989 as a justifiable reform in the democratic transition, and how this arguably facilitated the return to a cycle of unjustifiable court-packing, rather than definitively breaking that cycle. However, that long tradition itself suggests that, even had Alfonsín followed a less problematic process, later packing by Menem and others would still have been possible.Footnote 114 The next Part analyzes these developments in detail. First, the final section in this part provides some necessary background on the Supreme Court as an institution.
II. The Supreme Court(s) of Argentina until 1983
The Supreme Court had a history of moderate significance in the political system, and was relatively independent from 1853 to 1930.Footnote 115 Established in the liberal constitutional tradition, the Court had arrogated the power of constitutional review in the 1880s; echoing the U.S. Supreme Court’s Marbury v. Madison moment some eighty years earlier.Footnote 116
However, the Court became increasingly drawn into the distortions of Argentine politics as the twentieth century wore on, epitomized in its development of a practice of pragmatically bestowing legitimacy on de facto governments by issuing resolutions (acordadas) recognizing them as constitutional, in return for pledges to respect the Constitution. This approach was never successful; military leaders flouted the Constitution with impunity, and the Court proved unable to constrain them. During the relentless political upheaval of the twentieth century, the independence of Argentina’s judiciary was put under continuous pressure, with constitutional guarantees regularly suspended, and the Supreme Court not only required to swear oaths of loyalty to new regimes, but purged repeatedly, in 1946, 1955, 1966, 1973, and 1976; the latter involving dismissal of all judges of the Court.Footnote 117
While the Court had shown flashes of defiance and assertiveness in its history, it generally struggled to constrain the executive in the past or to exert any consistent authority in the constitutional order. In 1981, Feinrider concluded: “Despite examples of assertions of judicial power in Argentina … the Argentine courts seem to have followed a pattern of asserting their authority in cases that were of little importance for the preservation of the military’s power and authority.”Footnote 118 Though it is, as Osiel asserts, an oversimplification to characterize the Court’s stance under the military dictatorship as one of capitulation,Footnote 119 the Court was, if not quite an irrelevance during military rule, at most an inconvenience to the juntas. It was not the case that the regime meddled regularly with the Court, but that the regime appointed persons known to be unwilling to challenge military policies.Footnote 120
E. Court-Packing: From Remedy to Pathology
I. Court-Packing as Remedy
It was therefore in a sorry state—weak, timid, and unloved—that the Supreme Court limped into the new era of electoral democracy in 1983. The Court reaped few benefits from the return to democratic rule: The lack of an immediate process of constitutional renewal as part of the initial democratization process offered little real opportunity to seize on reform; nor was any real reform pursued through ordinary law. Unlike apex courts in neighboring states, the Court saw no formal enhancement of its constitutional standing or its powers, and no reform of its jurisdiction. It remained a supreme court of general jurisdiction, operating as the court of final appeal and the ultimate judicial power in interpretation of the Constitution.
Due to the rapidity of the transition to electoral democracy after the collapse of the military junta, the central effort made by the Alfonsín government to render the Court fit for purpose in the new democratic climate was a purge of its membership. Importantly for present purposes, although carried out with considerable bipartisan support and involving appointees unconnected to the executive, this was not pursued through an open and inclusive process that could fully articulate the need for, and democratic legitimacy of, such an extraordinary measure. Rather, it was effected by judges’ resignations once Alfonsín’s plans to remove judges by decree became public; an unusual case of “emptying” the Court, within Kosař and Šipulová’s analytical framework.Footnote 121 As Rebecca Bill Chavez has noted, President Alfonsín could have emphasized the new dispensation’s commitment to the supremacy of the Constitution by employing the formal impeachment procedure, justified for once on democratic grounds due to the sitting judges’ ties to the military dictatorship. However, opting instead for more informal means, he “reinforced an informal practice that had undermined judicial autonomy since Perón’s first term” in the 1930s.Footnote 122
Although achieved by questionable means, the purge initially ushered in a more assertive Court, comprising various “star” jurists. The first Supreme Court, operating following the return to electoral democracy and Alfonsín’s purge of its membership, appears to have been of an entirely different character than its predecessor. In its short life of some six years it handed down a number of significant decisions, attenuating the impact of the prior legal regime, and taking generally assertive stances on fundamental rights questions and progressive positions on social issues–entirely at odds with the deference to the State and submission to Catholic orthodoxy beloved by the military regime. The literature converges on a number of key decisions of the Court:Footnote 123 Diminishing the binding validity of dictatorship-era de facto laws on democratic governments; striking down a prohibition on remarriage following divorce and provisions criminalizing mere drug possession; and upholding the freedom of the press, the right to conscientious objection, and constitutional due process guarantees governing search and seizure, confessions and the exclusionary rule.
By rolling back the oppressive presence of the State in both the public and private sphere and asserting the supremacy of democratic laws, the Court appeared—in a manner comparable to the Turkish Constitutional Court post-2012—to be breathing life into the new democratic founding discussed above. The promises and guarantees of the Constitution would be firmly put into effect, and thereby, the character of the Argentine polity was slowly being remade in the democratic image. For the first time in over fifty years, serious steps were being taken at the judicial level to entrench the Constitution, and to bring substance and meaning to the hollow husk constitutional law had become.
Granted, these decisions were in line with government policy under President Alfonsín.Footnote 124 The Court did, however, take independent positions, which tended towards rebalancing the separation of powers. For example, roundly rejecting in the Zappa case, at the height of the economic crisis, executive arguments that the state of “economic emergency” permitted it to reduce retirement support without congressional approval.Footnote 125 This may be viewed as a democracy-enhancing decision in three ways: It tended toward entrenchment of the existing distribution of powers under the constitutional text; it moved toward disentrenchment of the old order by challenging the longstanding executive tendency to circumvent the legislature in difficult situations; and by taking an independent stance, the Court was asserting its proper role in the constitutional schema and engaging in “institutionbuilding.”
Of perhaps greater significance was the Court’s refusal to address key transitional justice questions. Most importantly, despite the febrile atmosphere of 1986–1987 following the trial of the juntas, with talk of a coup once again in the air, and with Alfonsín eager to assuage fears of prosecution among lower military officers, the Court refused to provide, as Alfonsín hoped, an interpretation of the Law on Due Obedience that would pacify the lower ranks.
In its landmark decision in the Camps case,Footnote 126 concerning prosecution of General Ramón Camps for torture committed against political prisoners when he was Chief of Police in Buenos Aires, the Court upheld the Law on Due Obedience and ordered the release of three defendants, who had been sentenced to imprisonment in December 1986 by a lower court. In a judgment fundamentally based on the principle of the separation of powers, the Court evinced a strong reluctance to review the constitutionality of the amnesties granted by the political organs, emphasizing that, as regards the law, Congress has power to seek its policy objectives in a reasonable manner, and “[w]hereas other values and solutions may be preferable to the one embodied in this Law, it is not the province of this Court but of Congress to decide on the path to take under the present circumstances.”Footnote 127
Justice Bacqué, in a lone dissent, strongly contended that the impugned law could not be constitutional given that it provided amnesty concerning crimes of such severity that they could not be characterized as common or political crimes.Footnote 128 However, his stance did little to sway the majority and in its subsequent 1988 decision in the case of Raffo, José Antonio and others concerning torture accusations, the Court again declined to strike down the Due Obedience law on the claimed basis of the precedence of international treaty law over national law. Both, the Court asserted, had equal status in the constitutional order, with Justice Bacqué once again a lone voice to the contrary.Footnote 129
By the end of Alfonsín’s presidency, his purge of the Supreme Court appeared to be vindicated. The Court had started to carve out for itself a realm of meaningful independence and autonomy, with a clear intention to weave the paper promises of the constitutional text into the very fabric of Argentine society and politics.
II. Court-Packing as Pathology
Further unjustified court-packing under President Menem stopped this development short. Upon winning the presidential elections in 1989, Menem lost no time in sending a proposal to add four new judges to the Court in 1990, to increase the number of justices from five to nine.Footnote 130 Unlike the purge under Alfonsín, aimed at achieving a Court untainted by experience of military rule, for Menem there was no broader justification for changing the Court’s membership. He rather baldly declared: “Why should I be the only president in fifty years who hasn’t had his own court?”Footnote 131 Harsh criticism by the First Court of the court-packing measures, in its Resolution 44, failed to stem the rising tide.Footnote 132
Ultimately, a number of judges resigned, and Menem over the first years of his tenure made every effort to free himself from any judicial oversight. The Supreme Court returned to something closer to its pre-1983 status, as a “rubber-stamp” of executive action. Much of the promise of the new democratic era, for the Court as both engine and subject of democratization, was snuffed out at a stroke. Argentina has been described as “a country on the margin of the law”Footnote 133 and this phrase also encapsulates the Supreme Court during the Menem period. Following Menem’s packing of the Court, it was essentially a different body. Crucially, unlike Alfonsín, who purged the Court but installed judges independent of the executive and thereafter respected its independence, Menem installed judges of “questionable impartiality”,Footnote 134 and critical of the First Court’s jurisprudence, to act as extensions of the executive arm, according a judicial imprimatur to his actions as president.
As both Gargarella and Larkins recount, this became immediately apparent in the Court’s jurisprudence.Footnote 135 In the same way that Menem lost no time in reversing the advances made by Alfonsín, the Menem Supreme Court lost no time in reversing the jurisprudential momentum made by the First Court. The validity of de facto laws was restored in Godoy, according them equal status to democratically-enacted legislation.Footnote 136 Excessive executive authority was restored, with the Court upholding the validity of a presidential decree instituting an extreme economic programme, despite the absence of any such presidential power under the Constitution,Footnote 137 permitting the president to remove an attorney general focused on high-level corruption investigations,Footnote 138 and enforcing an executive decision to transfer a more “amicable” judge to replace a more independent voice.Footnote 139 The First Court’s refusal to bow to arguments based on economic emergency was overturned, with the Court removing any constraints on the president in economic matters.Footnote 140 Even more starkly, in a case against the Central Bank, the Court removed a completed judgment from its official register and replaced it with a more favorable decision to the government.Footnote 141 The core achievements of the First Court’s fundamental rights jurisprudence were reversed, reducing protection of free speech, personal autonomy, and freedom from abuse of State powers in criminal investigations. For example, in Fiscal v. Fernández, Victor Hugo, the Court reversed the First Court’s Fiorentino decision expanding due process guarantees.
In constitutional terms, it must be emphasized that the dismantling of the First Court’s democracy-enhancing jurisprudence was not achieved through simply a different interpretive approach, but by disregarding the value of, and “disentrenching” the legal constitution; that is, the text of the 1853 Constitution. In its place, the autocratic political constitution, of rule by decree, was re-entrenched. In this way, the capacity of the legal constitution to constrain political actors simply dissipated. The Court became, not simply a victim of autocratic rule, but an engine of democratic decay.
The constitutional reform package of 1994, discussed in Part III, included removal of the two most pliant judges of the Supreme Court and the creation of a Magistrates’ Council aimed at enhancing judicial independence.Footnote 142 It appears that it was only from 1997, with a divided government following congressional elections, that the Court regained some space to reassert its authority vis-à-vis the executive.Footnote 143
III. The Long-Term Effects of the Packing Spiral
The failure to ensure that packing of the Supreme Court in 1983 was presented as an exceptional measure necessary for the transition from authoritarianism to democracy, to provide a full public justification for the measure, and to proceed through a fully defensible democratic process complying with rule-of-law standards set the scene for repeated packing under Menem in 1989, which itself necessitated further purging in the mid-1990s and beyond. It has also, arguably, allowed a much broader practice of manipulation of the wider judiciary to take root.Footnote 144 Indeed, the easing of executive interference with the Court, culminating in Kirchner’s reforms of 2003, has again required problematic reforms. Kirchner’s fresh start once again involved changes to the Court’s membership; an unfortunate third “purge” since 1983, when one should have sufficed.
Again, importantly, the measure was carried out by unilateral executive means rather than a fuller, more inclusive, process: The president urged allies in Congress to launch impeachment proceedings and by the end of 2004 had achieved his aims of ridding the Court of Menem’s appointees.Footnote 145 However, it is vital to note that these measures had broad political and societal support and were accompanied by reforms constraining the executive in appointing Supreme Court judges, opening up the appointment process to NGO involvement, reducing the Supreme Court’s size from nine to five members, depriving Kirchner of two nominations, and appointing prestigious figures widely regarded to be independent from the executive.Footnote 146
Taking the long view, this repeated crashing and rebooting of the Supreme Court has had notable effects on its operation as an institution and its jurisprudential output. There is a significant literature on the lack of judicial independence in the Court; perhaps most relevant being Helmke’s theory of “strategic deference,” whereby a Court with a history of external threats and purges will show deference to the government of the day until it perceives support for the incumbent regime weakening, and its decisions against the government increase as a form of “signaling” to the incoming regime, in an attempt to avoid any purge under the new dispensation.Footnote 147
Helmke’s thesis is borne out by various studies of the Court. Scribner, for instance, suggests that for much of Menem’s rule (1989–1999) the Court was reduced to little better than its function during the military dictatorship, ruling against the State solely where there was no conflict with central policy preferences of the executive power. Indeed, she has observed:
The greater willingness of Argentinean judges to check executive power under dictatorship versus under democracy owes much to the degree to which the supreme court has been open to political pressure and manipulation. The Argentinean Supreme Court has been as, if not more, politicized during democracy than during dictatorship.Footnote 148
It appears that judgments against the Menem government increased towards the end of his second term, which finished in 1999, although achievements of the First Court were still being dismantled and the Court is viewed as having walked a fine line between the policy preferences of the two contenders for the presidency; Eduardo Duhalde and Fernando de la Rua.Footnote 149 Thereafter, the Court found itself in the eye of the economic storm, required to adjudicate on the extreme measures, including the current account freeze (corralito), imposed to address the economic crisis that reached its zenith in 2001–2002; ultimately finding them unconstitutional.Footnote 150 The key here is that the Court made no attempt to distinguish its judgment from the previous decision in Peralta (1990), where similarly extreme measures were found to be constitutional.Footnote 151
Later judgments provided as evidence of the Court’s greater independence after 2003 also raise questions, such as the Court’s 2005 decision in Simón, in which a 7-1 majority struck down the amnesty laws of 1986 and 1987. The amnesty laws had already been repealed, but not nullified, by Congress, and Kirchner had pushed strongly for their nullification.Footnote 152 Moreover, to the lawyer’s eye, the reasoning exacted a high price. Rather than basing their judgments on the constitutional text, as Justice Bacqué had done in Camps in 1987, discussed above, the majority of judges hitched their wagon to international norms, including jus cogens and human rights treaties, arguing that the 1994 reforms, according constitutional status to nine such treaties, would require, at times, exceptions to the Constitution to be recognized, or “bubbles” in the Constitution into which the Court would insert external norms, without elaborating firm criteria for doing so.Footnote 153 One can only surmise why the Court took such an interpretive approach, but it is possible that the distortions of the Supreme Court since 1989 had rendered resort to earlier jurisprudence problematic, as well as factual realities, including Justice Bacqué’s resignation due to Menem’s court-packing plan.
In this sense, poorly managed packing may give rise to a host of problems. Under the Menem Court, threads of jurisprudential authority were regularly ripped from the fabric of the meta-Constitution, leaving an irregular pattern that does not invite close analysis. The judgments of purged judges may become harder to employ in constructing later judgments, bearing in mind that the Supreme Court does not operate on the basis of U.S.-style stare decisis in any case. It is, then, not simply that court-packing affects the court as a political institution, in terms of its authority and perception of its independence—which has been the core preoccupation of the literature—but that it also has repercussions for the court as a legal institution, preventing the court from building up any jurisprudential momentum; or, at least, complicating the relationship between pre-packing and post-packing jurisprudence. Packing also potentially affects the Court as a deliberative institution, as regards the relationships between existing and “packed” judges.
Even at the time of writing, the leftist government of President Alberto Fernández, elected in December 2019, has been under fire for controversial plans to transform the federal judiciary. Roberto Gargarella, for instance, has described the underlying motive for the plans as a “search for impunity” given the multiple corruption cases before the courts, including against the former president, and current vice-president, Cristina Fernández de Kirchner. Rather than an exceptional measure to be employed sparingly and with great care, then, fundamental transformation of the courts has continued as a mainstay of the political cycle in the post-authoritarian period.Footnote 154
F. The U.S. Court-Packing Debate: Lessons for the World
This section seeks to draw key lessons from the analysis above to analyze the court-packing debate in the U.S., while also drawing out the distinctiveness of the U.S. context as a case-study of contested democratic restoration—or at least constitutional repair—in the context of democratic decay, as opposed to contexts of “ordinary” constitutional reform or clear transitions from authoritarian to democratic rule. This section also seeks to emphasize the international salience of the U.S. debate, by examining five key dimensions of the U.S. debate based on the analytical framework set out in the introduction.
I. What is the Reform Context?
As indicated at the outset, the U.S. debate is not situated within an ordinary context for reform, yet also does not neatly mirror full political system transitions. In Argentina, as discussed above, the collapse of the military dictatorship marked a swift and sharp shift to a new democratic constitutional settlement; albeit one based on an old constitution. There is certainly nothing facially comparable to past democratic transitions or democratic restoration processes in states such as Germany or Brazil, where an entirely new constitution embodied a symbolic and politico-legal break with the past. Yet, when one looks at the combined arguments in the U.S. debates for Supreme Court, electoral system, and Senate reform, the difference does not seem so stark. One might capture it in the Spanish term ruptiforma—a system shift that involves both rupture and reform—and one that is not so different, in its internal dynamics, from the Argentine case, despite the very stark differences in the macro-political context.Footnote 155
However, the context of democratic decay adds further layers of complexity. First is the greater level of contestation regarding the nature of the moment and the need for any reform. The more partisan arguments present packing as almost self-evidently necessary, whether speaking of “retaliating” against or “rebalancing” Republican-era measures. However, as the Biden administration’s Commission on Supreme Court Reform has noted, there are diametrically opposed views on the nature, or even existence, of a democratic crisis justifying an exceptional measure such as court-packing.Footnote 156 Unlike the evident capture of the state by the military in 1970s Argentina, scholars like Fishkin and Pozen, resonating with Müller’s argument, discussed in Part I, contend that since the 1990s the U.S. has suffered “asymmetric polarization” as the Republican Party has moved further to the right than the Democratic Party has moved to the left; and by extension, “asymmetric constitutional hardball” due to greater Republican willingness to break longstanding conventions “not only or primarily on judicial nominations but across a range of spheres.”Footnote 157 Viewed from a comparative perspective, this points to a broader challenge that contemporary democratic decay as a process poses: Its relative subtlety, incrementalism, and maintenance of a somewhat thicker democratic façade compared to yesteryear’s swift installation of more evident authoritarian rule through Communist takeover, military coups d’état, autogolpes and other means complicates the task of democratic restoration due to opponents framing the debate as alternative visions of democracy rather than democracy and its alternatives.
Second is the issue of rationality. While hyper-polarization, as a feature of the U.S. political landscape as well as other democratic decay contexts, evidently shrinks the potential and political terrain for genuine bipartisanship to achieve reforms acceptable to both parties, it may be argued that a more difficult challenge is the decline of rationality in partisan contestation. This presents a marked contrast to the more rational, if still highly contested, post-authoritarian and post-Communist past transitions in states such as Brazil or Poland, where opposing forces were relatively evenly matched.
Third, and strongly related to the above, where past democratic transition, or restoration, was marked by a shift from governmental hegemony over information production to a plural regime, negotiations on democratic restoration in contexts of democratic decay take place against a seriously degraded and fractured epistemic space, due to information excess, fragmentation, and disinformation, amplified by long-term assaults by governmental and political actors on the very notion of objectivity, or of objective non-partisan institutions.Footnote 158 This all clearly denudes the reform landscape of honest brokers capable of facilitating a reform process. Unlike Europe, where actors such as the Council of Europe’s Venice Commission may retain sufficient credibility to assist democratic restoration processes, international intervention of this nature appears out of the question in the U.S. context. Moreover, data—albeit imperfect—from disinterested or external actors, such as international democracy assessments, tending to concur that the democratic system has been significantly degraded due to voter suppression, gerrymandering and other measures, cannot cut through the fragmented political and epistemic landscape. Faced with competing narratives of “constitutional restoration”—an older, Tea Party-era narrative and the ascendant progressive narrative—seeking to discern good faith or bad faith is acutely challenging. Two things, at least, seem clear. First, citing historical precedent for packing, from an era defined by different democratic standards and understandings, appears a weak legitimating basis for contemporary reforms, as Braver argues. Second, a focus on the interaction of articulated purpose and reform process, which have not been prominent in the debate, can aid assessment.
II. What is the Articulated Purpose?
The second dimension of the analytical framework for contested democratic restoration reforms refers to the importance of a full articulation of the reform’s aims and to what degree it is exceptional. As discussed above, this has been sorely lacking in cases such as Turkey and Argentina.
In the U.S. context, President Biden has expressly indicated an aversion to court-packing while declining to rule it out entirely—as indicated by the reform commission’s composition, discussed below.Footnote 159 It remains to be seen whether his administration will coalesce around a specific option. Beyond the president, the two dominant purposes articulated in both the academic and political debates lie in opposition to one another. The first, focused on “rebalancing” the ideological composition of the Court, voiced by progressive proponents, would arguably heighten the risk of retaliatory packing, given its conception of the need for the Court to align with prevailing political cleavages—in a sense, viewing the Court, as Epps and Sitaraman put it, as “simply one more political institution.”Footnote 160 The second, focused on the wider aim of “depoliticizing” the Court, generally seeks to weaken the partisan perception and character of the Court, thereby strengthening its liberal character. Further complicating the debate, as Braver notes, various contemporary proponents of packing are long-time critics of judicial supremacy, for whom a significantly, or even fatally, undermined court might not be viewed as a constitutional ill.Footnote 161
III. What are the Reform Options?
As discussed in Part I, the U.S. court-packing debate clearly encompasses a wide range of reform proposals, including variations of court-packing as well as options such as term-limits and narrowing the Supreme Court’s jurisdiction. One way to approach proposals is to ask whether the articulated purpose of packing can be achieved by less controversial means. If we take “rebalancing” as the main purpose, court-packing does appear to be the only immediately effective choice available. However, if depoliticization and enhancing the legitimacy of the Court is the main purpose, other long-term options might make more sense. A broader question is whether a specific reform forms part of a broader suite of reforms, and what those reforms are. Clearly, as seen in the Turkish context, a reform context dominated by excessive amplification and centralization of executive power raises questions about the reform process as a whole, whereas a broader context focused on enhancing constraints on the executive, as seen in 1983 Argentina, alleviates concerns. In this connection, the reform package proposed by some packing proponents in the U.S. context can be objectively assessed as dispersing power in ways that render the electoral and constitutional system more inclusive and pluralistic. Yet, learning lessons from Argentina, reformers need to have a full sense of the risks as well as potential rewards, including the potential internal impact on institutions, as discussed in Part IV above.
IV. What Might a Justifiably Democratic Reform Process Look like?
The fourth dimension of the analytical framework identifies the salience of the openness, pluralism, and length of the reform process. Four main points may be made here. First, viewing openness and pluralism in constitutional reform as a spectrum—and construing reform more broadly than formal amendment of the text—can range from the closed and controlled amendment processes in Turkey or Hungary, at one end, to the highly participatory use of citizens’ assemblies in states such as Ireland.Footnote 162 The Biden commission, firmly couched in the established U.S. tradition of presidential commissions to examine reform, rests somewhere in the middle, with independent experts in central control but mandated to run a participatory process including other experts, civil society, and the public. Ilya Somin has offered that it is a “genuinely bipartisan and cross-ideological group” whose terms of reference appear to include endorsing or rejecting specific reform proposals, but that proponents of court-packing will struggle to find support from members openly opposed to packing. Observing that presidential commissions have a record of issuing reports that are “quickly forgotten, doomed to gather dust on bookshelves,” he opines that this commission could prove the exception if it can build consensus around a specific reform, such as term-limits.Footnote 163
Second, as regards length, the express 180-day time-limit for the commission’s report clearly differs from the rushed and opaque processes in other states discussed in Parts B–E. The calculus here is not that greater length is always desirable, but that meaningful democratic deliberation requires sufficient length, and this may need to be balanced against other considerations.
Third, compared to the top-down, closed packing processes from Poland to Argentina, which had a pre-conceived outcome, the commission does not pre-judge the reforms to be made, although its composition has appeared to lean toward some reform options more than others, and, while representing political diversity, has offered the impression of an élite-dominated process. Although bipartisanship is itself a challenge in the prevailing hyper-polarized U.S. context, viewed from a global perspective, public participation in constitution-making and constitutional change has developed to the point that it has been described as “a new norm.”Footnote 164 As such, hearing from those beyond the two-party system may be viewed as important in overcoming the bipartisan trap: The two main parties together represent at best some sixty percent of the electorate, and the growing percentage of the electorate that has no partisan affiliation is larger than either party, counted as between thirty-six and forty-five percent in all monthly Gallup polls during 2020.Footnote 165 The above might suggest that broadening the reform process to include a deliberative process, such as a citizens’ assembly, could help to address not only public ownership of democratic restoration reforms but also issues such as the fracturing of a shared epistemic basis for discussion and the need to indicate the exceptional nature of the reform.
However, it would be easy to lapse into an air of unreality in discussing processes for constitutional repair. A key insight from constitution-building literature is that “windows” for reform can close rapidly and must be seized upon if reform can take place.Footnote 166 Viewed in this light, if one takes the view that restoring a more functional system of checks and balances, as well as a fairer electoral system, is an urgent challenge, the best can certainly be the enemy of the good. In other words, an excessive focus on process—deliberative, participatory, slowed-down, transparent—may fatally undermine the achievement of substantive aims that can be objectively assessed as democracy-enhancing. Evidently, each context will be different. Path dependence will shape the parameters of, and mechanisms for, reform; as will issues such as the electoral cycle and the sustainability of political coalitions. On a principled basis, while “ordinary” contexts of constitutional reform may increasingly tend toward a longer and more participatory and inclusive process, viewing democratic restoration in the context of democratic decay as a specific category of constitutional transition may provide legitimation for a shorter and somewhat less inclusive process, although sufficient length, inclusiveness and openness remain important.
V. How to Mitigate the Repetition Risk?
The final dimension of the analytical framework asks how we can ensure that good faith reforms do not trigger a tit-for-tat reform spiral under successive governments, which would threaten heightening constitutional hardball into an ongoing constitutional tug-of-war that would further fray the bonds of the Constitution as a shared basis of rules for the political community. In current U.S. debates on court-packing, repetition risk is plainly discussed in hypothetical terms. Fears center on packing as “politically inﬂammatory and unstable,” leading to successive packing episodes as each party gains power; although scholars such as Tushnet argue that there are other scenarios where packing itself could achieve a “stable equilibrium,” especially if Democratic governments stay in power long enough to enact measures to address voter suppression and gerrymandering.Footnote 167 While remaining cognizant of the differences in context, the Argentine case-study counsels caution in this regard, suggesting not only that packing today risks retaliatory packing tomorrow, but that it might raise immediate risks for how the Court operates internally should “packed” judges suffer a taint of illegitimacy, even if individually blameless.
It may be argued that this risk is overstated and based on the contemporary political landscape, which could be fundamentally altered by electoral and Senate reforms. However, this merely lessens the risk, and it is important to note that governments of all hues can be tempted to pack the courts, especially if the norm against doing so has been weakened. That point can be widened to encompass proposals for norm-breaking in Hungary and other contexts to restore a functioning liberal-democratic system, discussed in the introduction. A central challenge, whose importance increases with reforms viewed as norm-breaking, is articulating their exceptional nature in a way that dissuades repetition. One option, as Tamir has suggested, is for reformers to make “self-negating” statements recognizing the act of norm-breaking while simultaneously insisting on the importance of the norm itself.Footnote 168 As argued in this study, rhetoric itself is important. However, articulation of the purpose of norm-breaking should be contemplated alongside potential practical and processual means to mark out its exceptional nature.
Four additional points may be made here, in response to replies to the analysis above by seven scholars through a Symposium hosted by the International Association of Constitutional Law (IACL) Blog from March to May 2022: Mark Tushnet, Ros Dixon, David Kosař and Katarína Šipulová writing jointly, Josh Braver, Oren Tamir, and Aslı Bâli.Footnote 169 These can be framed as four potential analytical traps.
First is the categorical trap. It is evident that there is strong resistance to characterizing the U.S. as a state suffering democratic decay. Read together, many of the contributions tend to frame the current challenges in the U.S. as an aspect, albeit extreme, of “ordinary” politics. Mark Tushnet’s framing of the court-packing debate around “ambitious reform agendas,” while characteristically illuminating, tends to side-step the question of contemporary democratic decay entirely.Footnote 170 Most expressly, Braver offers: “The United States has the longest-lasting liberal democratic constitution in effect today.”Footnote 171 Yet, such claims tend to elide important considerations, such as: The longstanding contestation concerning when the U.S. became a “true” liberal democracy, including Alfred Stepan’s view that this only happened in the 1960s with the passage of civil rights reforms; the deep history of “authoritarian enclaves” or “subnational authoritarianism” in the U.S. body politic;Footnote 172 and mounting evidence of serious democratic regression and a shift in the conversation from whether U.S. democracy is under threat to an acceptance that backsliding is undeniably in train, albeit not as severe as that in states such as Hungary.Footnote 173
Importantly, as indicated in the introduction, drawing on comparisons to Turkey and Argentina does not involve lumping the U.S. in the same category of fragile democracies and young democracies transitioning from authoritarianism. Rather, it is to recognize that the extent of democratic regression in the U.S.—or “constitutional rot,” to use Balkin’s termFootnote 174 —requires us to face that political reality and avoid approaching the court-packing debate from the perspective of a “well-functioning” democracy. This could possibly lead us into the “confidence trap” of complacently assuming the system will somehow right itself through the ordinary electoral and institutional processes as it has previously, or characterizing present crisis as merely a temporary downswing in Balkin’s “cycles of constitutional time;” a complacency that Balkin himself expressly warns against.Footnote 175 It is inevitably difficult for many observers to accept that the contemporary U.S. may be better understood as lying in a category of “decayed” democracies such as Poland or India, notwithstanding very significant differences between the U.S. and these other states. As argued above, framing the court-packing debate as playing out within a specific form of constitutional transition focused on reparative measures to address significant democratic decay is not only valuable but perhaps indispensable to better understanding contemporary challenges in the U.S., while also allowing us to distinguish the U.S. context from the Turkish and Argentinean contexts.
Second is the ideal process trap, requiring clarification on the importance attached to process. While Dixon, Kosař and Šipulová view this as the critical factor for addressing legitimacy questions, Braver, Tamir, and Bâli rightly emphasize that is vital to avoid the potential trap of claiming that court-packing can only be legitimate if achieved through a fully open, transparent, and deliberative process.Footnote 176 As offered above, not only might that simply be impossible in the circumstances, but it might be justifiable to engage in “noble” or strategic subterfuge; avoiding a full articulation of the reform’s purposes to mitigate opposition. Moreover, while resorting to something like a citizens’ assembly might seem like a potential solution—perhaps permitting reformers to “engineer” an Ackermanian constitutional moment by connecting elites with the grassroots in a meaningful dialogue—like the bipartisan presidential commission it could all too easily fall prey to partisan contestation. There is no easy way out here, nor any ready answers. However, while we cannot attempt to neuter or side-step what are quintessentially matters of political judgement and substance through the lawyerly tendency to focus on process, process still remains a central means for signaling the exceptionality of court-packing as a reparative measure. It also allows constitutional scholars in particular to make useful contributions to this debate; to say more than “it’s complicated” or “it’s a matter for political judgement.”
Third is the last resort trap. While our starting intuition might be to view court-packing as only ever legitimate in circumstances where all other reform options are insufficient or impossible—especially given Dixon’s warning of setting precedents for abuse by anti-democratic leaders through incidental legitimation of packing as a reform technique—Tamir warns of the political disadvantages of taking “nuclear” options such as packing off the table, when the threat of such action might be strategically employed to achieve compromise solutions. He raises the risk of “paralysis by analysis,” whereby opponents stall reform through an exhaustive search for alternatives. Braver adds that alternative reforms might be simply unavailable, while Kosař and Šipulová lay out the constraints in the U.S. context that seriously narrow the range of reform options capable of producing the same or similar effect as packing as regards “unpacking” or “rebalancing” the Court: The lack of any compulsory retirement age for Supreme Court Justices; the absence of term limits; the system of strong judicial review; and the “unpredictable practice of strategic resignations.” Sometimes, distasteful measures are not truly a choice.
Fourth and finally is the binary trap. Bâli, in her reply, criticizes the language of “good” and “bad” court-packing as reducing what is expressly an indeterminate and multi-factorial framework to an unhelpful binary. That is a very valid criticism, but the binary reflects this article’s provocative purpose: To focus our minds on the possibility of court-packing designed to repair rather than undermine the liberal-democratic system. All things considered, court-packing is never “good” in the sense that it’s never an ideal choice or an easy choice. Absent good-faith reasons for court expansion, such as addressing real capacity problems or large case back-logs, I concur with Braver that it has been wrongly reconceived as “routine and harmless” by various scholars in the U.S. debate. Its contemplation by committed democrats (itself a contested category) reflects at least the perception that something has gone seriously awry in the courts, and by implication, the wider democratic system. For that reason, it might be more accurate—reflecting multiple contributors’ use of the term “continuum”—to speak of “better” and “worse” packing.
G. Conclusion: Global Challenges of Democratic Restoration and Constitutional Repair
What does the U.S. debate on court-packing tell us about contemporary global challenges of democratic restoration and constitutional repair? This article has sought to emphasize the wider relevance of the U.S. debate to comparative constitutional law, as well as adding to the U.S. debate itself, by demonstrating the value of adopting a comparative perspective to democratic restoration and the many theoretical and empirical insights that can be drawn through connecting four key research areas: Democratic decay, democratization, constitution-building, and transitional justice. The central claim—that democratic restoration and constitutional repair in a polity that has suffered significant democratic decay differs significantly from both reform in well-functioning democracies and democratic transition from authoritarianism—recognizes that decay contexts present distinctive challenges, and further layers of complexity and contestation, that require careful attention.
While recent years have witnessed comparative constitutional lawyers racing to understand democratic decay as an increasingly global phenomenon, now is the time to forge intellectual frameworks for understanding today’s challenges of democratic restoration in contexts of decay, which is set to become an emergent central challenge for constitutional law. Debates ongoing in the U.S., and intensifying discussions around potential future constitutional repair in countries such as Hungary, Poland and Brazil, challenge and require us to move beyond our established frameworks and real-world toolkits for constitutional change. This article has sought to take the first steps toward, and a framework for, this wider discussion, seeking to enable us to see the choices and trade-offs to be made, in contexts of multi-layered indeterminacy, with clearer eyes. That is perhaps the best we can hope for as we “muddle through,” as Braver puts it, the challenges of repairing—and hopefully strengthening—our democratic systems.Footnote 177