Comparative court-packing
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Kosař, David [1] ; Šipulová, Katarína [1]
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[1] Masaryk University
Masaryk University
Chequia
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- Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 21, Nº. 1, 2023, págs. 80-126
- Idioma: inglés
- Texto completo no disponible (Saber más ...)
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Resumen
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.
