Court-Packing: Four Observations on a General Theory of Constitutional Change

Mark Tushnet

Harvard Law School

Tom Daly’s article on “good” court-packing is a valuable contribution to the burgeoning theoretical and empirically informed literature on responses to and – in a more hopeful register – recovery from democratic decay. As is my wont, I focus on the theory part of the inquiry, and make four observations about some possible components of a more general theory (of what? – perhaps of more-than-incremental constitutional change).

1. Timing

When does significant constitutional change occur? A standard answer, put in varying ways, is that such change occurs in constitutional moments when one constitutional regime – a loosely linked set of institutions and values that organizes politics over an extended period – replaces another. Sometimes we can talk of “critical elections” as marking this transition. As the focus on “moments” and specific elections suggests, these are times of more or less abrupt replacement.

What, though, of circumstances in which one regime is probably on its last legs but political conditions are such that its immediate and complete replacement is pretty much impossible? I call these circumstances “interregnums,” and their key feature for me is uncertainty about what is going to replace the dying regime. The United States today and, one hopes, Hungary in the next few years, are examples of interregnums. 

Theory hasn’t yet focused on these periods, and I’m not sure what reasonable hypotheses are worth exploring. One, I suspect, is that proposals for constitutional change will circulate widely during these periods; another is that such proposals will be met not only with political opposition – that’s inevitable during an interregnum – but with denunciations for being anti-constitutional.

2. Decay and Recovery

Daly poses his questions about good court-packing in connection with recovery from democratic decay. I believe that a somewhat wider lens may be useful. In a recent book, Power to the People: Constitutionalism in the Age of Populism, Bojan Bugarič and I write about “ambitious reform agendas” (ARAs), implicitly distinguishing them from incremental reform agendas. Not surprisingly, ambitious reform agendas are associated with regime transitions. And, typically, they are about substantive policy: how to manage the economy, for example.

The argument Bugarič and I make has, for present purposes, several components. First, “reform” is politically neutral. Conservatives have ARAs and so do liberals. Second, implementing an ARA typically runs up against constraints entrenched in what we call the constitution-in-place. Third, politicians and political movements with ARAs typically have a limited window of time to implement their agendas (unless they come in and immediately suspend democracy, as in military coups). They have to prove themselves before, roughly, the next election.

And, finally, the constraints of institutions and time make it politically sensible for politicians with ARAs to add something to the substance of their agendas. The substantive ARA may call for constitutional change (land reform and returning resources to public ownership after privatization, for example). The new feature is institutional change to eliminate or reduce the obstacles the constitution-in-place embeds to implementing non-constitutional aspects of the ARA.

The payoff of this argument is this: I don’t think we can de-link our evaluation of court-packing (or other changes in constitutional institutions) from our evaluation of the ARA it’s linked to. Kosař and Šipulová’s effort to do so is in my view the best one around, and I don’t think it succeeds. I find more compatible Daly’s defense of good court-packing, connected as it is to an account of recovery from democratic decay (though I do observe that it implicitly relies on the theory that democracy in itself is good no matter what substantive policies democratic elections and other institutions advance – clearly a defensible proposition, but one that, I think, does need defense).

3. Implications for Constitutional Design

Should constitutions contain norms against court-packing? Kosař and Šipulová seem to say yes: by defining court-packing as “irregular” they must take some existing norms as defining regularity in staffing the courts. Here I think it helpful to distinguish between the provisions of written constitutions (these days referred to as large-C Constitutions) and the norms of unwritten, small-c constitutions. The reason is that written constitutions are drafted under conditions of a partial veil of ignorance whereas the norms of small-c ones emerge from and are continually reshaped by on-going political contestation. (The chapter in Power to the People on guardrails offers Bugarič and my analysis of some aspects of that proposition).

To restate what’s well known: On the basis of their knowledge of their societies, constitution drafters can and often do make some guesses about how the institutions of a new constitution will work over the short run. Sometimes they will assign a high probability to their guesses, other times a lower one, and sometimes they will acknowledge that they have no real idea about how the institutions will actually work. Further, constitution drafters have varying time horizons. Some will care only about how the constitution will work over the first years of its operation, others will think about how it will work if and when one governing coalition loses office and is replaced by another, and a few will (mistakenly) think that they are drafting a constitution for the ages.

Daly argues that a multifactorial analysis is required when we seek to distinguish between good and bad court-packing. As my discussion of the linkage between the substance of an ARA and constitutional change indicates, I agree. But, arrangements that can be evaluated only though multifactorial analysis aren’t good candidates for inclusion in a written constitution because the factors will have varying weights depending upon varying circumstances.

A similar conclusion, though perhaps even stronger, can be drawn with respect to small-c constitutions. Such constitutions have norms or conventions that are shaped by enduring political practice. They resist change – or, more precisely, political actors invoke them to resist change – based upon what seem to be transient political impulses. Two observations here: Now referring back to the political logic for constitutional change during regime transitions and interregnums, invoking a convention against institutional change (against court-packing) is simply opposing the ARA that the institutional change is to serve. And, the factors relevant to Daly’s assessment of whether court-packing is good or bad are precisely transient features of the political scene. That makes a norm against court-packing a bad candidate for inclusion in a small-c constitution.

4. A Specific Illustration

I conclude with a specific illustration of the foregoing comments. In the United States (and, as Daly at least suggests, elsewhere) discussion of court-packing tends to focus on the risk of repetition: If you pack the court now your adversaries will re-pack it when they get the chance. It seems obvious to me, though apparently not to many of those who make the argument, that the risk of repetition is just one of those political circumstances that go into the multifactorial analysis.

Begin with the case of the successful regime transition. If you think that you’re going to control the government for the foreseeable future – that is, that the old regime is going to be gone soon enough – you shouldn’t worry about the risk of repetition (which is, on that assumption, zero). What if you think you’re in an interregnum? You shouldn’t worry either: Maybe the interregnum will end with you taking over and the court-packing will stick; maybe it will end with your adversaries taking over, and they’ll undo the court-packing to implement their ARA (in colloquial terms, you’re going to be politically screwed anyway so why nit-pick over court-packing today?). 

And finally, with respect to the United States specifically, the concern about repetition risk is plainly driven by the current condition of extreme partisan polarization – which is exactly the sort of transient political condition that counsels against treating “don’t pack the Court” as a small-c constitutional convention or norm.

As these comments suggest, Daly’s article is a quite significant contribution to constitutional theory because it opens up a wide range of (to me) interesting questions worth further exploration.

Mark Tushnet is William Nelson Cromwell Professor of Law, Emeritus at Harvard Law School

Suggested Citation: Mark Tushnet ‘Court-Packing: Four Observations on a General Theory of Constitutional Change’ IACL-AIDC Blog (17 March 2022) https://blog-iacl-aidc.org/can-good-courtpacking-repair-democracy/2022/3/17/court-packing-four-observations-on-a-general-theory-of-constitutional-change.