How to Fight Court-Packing?

  • David Kosar
  • Katarina Sipulova
Keywords: courts, judges, court-packing, court curbing, judicial independence, court presidents, separation of powers, unconstitutional constitutional amendments, informal institutions, Court of Justice of the European Union

Abstract

Whether we like it or not, court-packing has flourished all over the world. Bolivian, Hungarian, Polish, and Turkish as well as Venezuelan political leaders have recently employed various strategies to stack their courts with loyal judges. Even in consolidated democracies, such as the United States, the possibility of court-packing is discussed with an intensity unheard of for several decades. Yet, our conceptual understanding of the phenomenon is still very limited. This article provides a novel conceptualization of court-packing and identifies three court-packing strategies: (1) the expanding strategy, which includes techniques that increase the size of the court; (2) the emptying strategy, which results in a decrease in the number of sitting judges; and (3) the swapping strategy, which aims at replacing sitting judges. Subsequently, it analyzes the potential safeguards, both formal and informal, against court-packing strategies and shows that formal institutions are rarely enough to fend off court-packing attempts.

Published
2020-06-29
Pages
133-164