“Good” Court-Packing in the Real World

Oren Tamir

Harvard Law School

Tom Daly’s important new paper asks whether court-packing can ever be good and answers “it depends.” More specifically, Daly suggests that the potential “goodness” of court-packing should be evaluated by paying attention to five specific factors. First, the democratic context, which I interpret more crudely than Daly’s subtle presentation as whether the act of packing the court is going to increase the likelihood that a country previously facing a state of democratic decay or constitutional retrogression will be put on a trajectory of democratic recovery or restoration. Second, the articulated purpose of the reform, namely — how much those who are pushing to pack the courts are forthcoming about this move’s goals and highlight its extraordinary nature. Third, whether the packing plan is advanced by its proponents after consideration of alternatives that might achieve the desired result through less extraordinary means. Fourth, the process that would accompany the attempt to pack the courts, and especially how transparent, inclusive, deliberative, and generally in good order it is. Fifth, and finally, whether the plan to pack the courts is sufficiently attentive to the risk that packing would lead to repetition and, ultimately, to an endless cycle of tit-for-tat or “ping-ponging.”  

I find Daly’s argument that despite the risks of court-packing, “good” manifestations of it do exist, highly compelling. The principal reason Daly develops for this sounds largely right to me: after all, one way that political forces that lead to dramatically negative consequences for democratic constitutionalism can rise to power in the first place, maintain themselves over time, and even expand their strength further is through the courts and their judgments (Rosalind Dixon and David Landau’s joint work identifies one example of this dynamic in what they call “abusive judicial review”). The potential for reversing the trend and setting a particular jurisdiction on the path to restoration therefore substantially hinges on being able to stop this specific form of “abuse,” whether by simply making sure that judges won’t block future attempts at restoration or, more ambitiously, by having courts actively collaborate with the political coalition for democratic and constitutional restoration. Since court-packing can clearly be effective in guaranteeing that this in fact happens, at least in the short to medium-term, Daly is entirely correct to insist that this tool should in principle be left on the table. 

That said, I do have some concerns about the framework Daly develops for evaluating the “goodness” of court-packing. Put simply: my concern is that this framework — even though Daly appropriately disavows pretentions that it’s meant to be “comprehensive or airtight” (p. 5) — would prove too restrictive. That is, I worry that it would lead scholars to mistakenly classify instances of potential good court-packing as bad ones. To the extent that our ideas as academics do have some real consequences (a tricky, far from obvious proposition, to be sure), I also worry that this framework would limit the ability of movements to initiate “good” court-packing from getting off the ground.  

The key reason for this is that I believe the framework isn’t sufficiently attentive to the true dynamics of messy political reform. Or, at least, I worry that the framework could easily be implemented in ways that would prove inattentive in this way. (I bracket for present purposes another concern that I have, which I simply don’t have the space to address here responsibly, and which has to do with how Daly’s framework might be read as exaggerating the risks of court-packing, and especially the risks from the loss of judicial legitimacy as well as the risk stemming from the possibility of an endless cycle of tit-for-tat. I hope to develop my more skeptical take on these risks, or at least show they’re far from obvious, in another forum). 

To see my concern here, start with Daly’s suggestion that one consideration about whether court-packing is “good” is if it is pursued only if similarly effective alternatives aren’t available. That certainly sounds like a sensible requirement in theory, a kind of a principle of proportionality as applied to the situation of constitutional restoration (for a somewhat analogous discussion, which develops the role of proportionality as a guiding principle for players who seek to engage in potentially risky “countermeasures,” see here). But on further reflection it should be relatively easy to recognize, I think, how tricky it might be to abide by this requirement in the messy world of political reform. For one, there’s usually some measure of substantial uncertainty about how likely it is that a specific measure will achieve its purported goals as effectively as others. This uncertainty might be a general feature of decision making, in both law and politics, but it might be much more intense in the context of political transitions where the issue of court-packing is most likely to arise and where uncertainty does seem especially pervasive (a point I elaborate on in a separate paper). By insisting that a clear analysis of alternatives must accompany court-packing to render it legitimate might therefore become a significant hindrance to achieving the reform, at least if that requirement isn’t implemented with some substantial measure of generosity and with appropriate recognition of the true uncertainties. 

In addition — and perhaps more importantly — in the real dynamics of political reform, the feasibility of achieving means that are less extraordinary might at times crucially depend on the feasibility of achieving the more extraordinary ones. This is so because the former might only be possible if the other side is concerned that you might opt for the latter and is thus encouraged to compromise (or back away). Indeed, as the Danish chess player Aaron Nimzowitsch famously observed, sometimes “the threat is stronger than the execution.” Insisting that court-packing would be pursued only as a kind of last resort or a truly “nuclear option,” at least if implemented rigidly, might therefore remove some of the chips that seem important to have on the table to make restoration possible — as part of a complete “package” or bargaining strategy that might be used by a coalition pursuing the path of constitutional restoration. 

Turning to Daly’s requirement of an orderly, transparent and participatory process: that, too, certainly makes a lot of sense abstractly. But, again, it might be hard to achieve on the ground and in the real dynamics of political reform. Or it would restrict it more than seems to me justified. For example, we can’t rule out that the various levers of process that Daly’s framework directs our eyes towards are themselves captured by those who oppose it. To the contrary, the fact that the term “constitutional capture” is one of those terms that we regularly (and accurately) use to describe the phenomenon of democratic decay in the first place makes this more than plausible. As a result, insisting on more process or on a fully orderly process can potentially make the likelihood of positive change systematically unlikely. 

Furthermore, abiding by the constraints of good process has a clear “slowing down” effect. But sometimes in the messy world of political reform it’s crucial to actually “speed-up”, for instance to maintain momentum when a sufficiently robust coalition that can pass the relevant reform is still in place. By insisting on more process and slower reform, as someone who’s following Daly’s list of factors would potentially do, we might again be blocking the possibility of achieving the reform. The necessary coalition might scatter. Or the circumstances might have changed in ways that are much less hospitable to the relevant coalition, even if it is still able to hold together (on some of the complications here, including the fact that political coalitions tend to be multidimensional, see here).

For the exact same reasons, it is easy to see why the requirement of articulated purpose might similarly prove quite demanding in the real world. If, as I’ve suggested, the levers of process that Daly directs our eyes towards are potentially captured, or if “speeding-up” seems important, some forms of obfuscation might indeed be desirable if we want to see the plan becoming feasible (as either a credible threat or in full). Indeed, I don’t think that we should be entirely allergic to the idea that in circumstances such as these a “veil of decency” can be put to good use—to make the lives of the non-democratic opponents at least somewhat more complicated in objecting to the restoration. And, again, the reality of potential capture provides further support to the previously discussed concern that the requirement of seeking alternatives first would prove rather restrictive. It emphasizes that the search for alternatives could be a tool used by non-democratic opponents of the proposed court-packing to stall or hinder the desired reform—as a kind of paralysis by analysis.  

To be clear, all of this is not to say that political reform in general—and one that centers on the possibility of “good” court-packing in particular—could only be achieved in a rushed or process-free way. Nor it is to suggest that it is always desirable to push it forward in this manner. Sometimes a reform that follows “best practices” of process would be feasible; indeed, in some circumstances, it might be the only way to go (Mark Tushnet’s discussion in this series about the situations he calls “interregnums” identifies one category of cases where that rings true). And sometimes it would clearly be desirable to move slowly and to run through a fully orderly, deliberative and participatory process. But sometimes is not always. And in constructing a more general theory of “good” court-packing, I think it’s important to be attentive to the full range of options of how political reform would likely play out or else we might contribute to making the reform less likely. 

Another way to put my claim here is as follows: Daly performs a valuable scholarly service in raising the issue of “good” court-packing, including by putting it in comparative perspective. And his analytical framework for evaluating good court-packing is also valuable. But for it to truly track political realities, the single most important factor seems to me to be the first one Daly identifies—the democratic context. All else seems subordinate to it or pale in comparison to it. True, that may make the evaluation of “good” court-packing less objective. After all, it’s much easier to point to process indica rather than deal with the issue of what Daly calls democratic context, which is more substantive and disputed. Given what we know so far about how political reform works, and the stakes of restoration, I don’t think however that we have much of a choice other than to face this hard task. 

Oren Tamir is a graduate fellow and SJD candidate at Harvard Law School. 

Suggested Citation: Oren Tamir, ‘“Good” Court-Packing in the Real World’ IACL-AIDC Blog (5 April 2022) https://blog-iacl-aidc.org/can-good-courtpacking-repair-democracy/2022/4/5/good-court-packing-in-the-real-world .