Towards a Concept of Court-Packing

Abstract

Courts with constitutional review competences are often regarded as a major defence mechanism against illiberal changes in democracies. The “guardians of the constitution” are tasked with constraining executive and legislative power. That is why authoritarians in countries like Poland, Hungary and Turkey have viciously moved against them. In this context, a phenomenon often referred to as “court-packing” has received increased scholarly attention – the politically expedient modifications of the composition or structure of a court by a government with the aim to replace independent or oppositional judges with political loyalists. In this paper, I present a novel conceptual outline of court-packing by developing a new theoretical framework based on a number of illustrative cases. I focus in particular on the functions of a packed court, the ways a court is captured and the illiberal quality of packing a court. Court-packing as a form of abusive political entrenchment of a court is a potent weapon in the arsenal of authoritarians to undermine judicial independence. I conclude by advocating for a more nuanced understanding of anti-democratic transformation.