Publication details
Comparative court-packing
| Authors | |
|---|---|
| Year of publication | 2023 |
| Type | Article in Periodical |
| Magazine / Source | ICON-INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW |
| MU Faculty or unit | |
| Citation | |
| Web | Open access časopisu |
| Doi | http://dx.doi.org/10.1093/icon/moad012 |
| Keywords | court-packing; legitimacy; political interference; judicial independence; democracy |
| Description | In the wake of Donald Trump’s presidency, a fierce discussion over expanding the US Supreme Court erupted. However, the expansion of a court’s membership is just one of several court-packing techniques. Moreover, the American debate is peculiar due to the unique features of the US Supreme Court. The aim of this article is to look at court-packing from a comparative perspective, to link the debates on tinkering with courts’ composition on both sides of the Atlantic, and to bring into the conversation a diverse scholarship in the Global North and the Global South. Based on experience from other parts of the world, this article provides a new, broader definition of court-packing that includes not only expansion of the court in question, but also emptying and swapping strategies. It then discusses the typical justifications for and dangers of court-packing and provides a prospective pragmatic mid-level theory that allows us to assess whether a given court-packing plan is legitimate. It argues that the legitimacy of court-packing has two dimensions: one focusing on whether court-packing pursues a legitimate aim (ius ad bellum of court-packing) and a second dimension exploring whether court-packing itself is implemented legitimately (ius in bello of court-packing). This means that even if politicians have a “just cause” for court-packing, their actions are still limited. |
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