This article provides the first comprehensive and conceptual account of all increases and decreases to the Supreme Court’s size. In today’s debate over court-packing, proponents cite and opponents concede that there is ample precedent for the tactic. Against this prevailing consensus, I argue that, although the Court’s size has changed seven times, court-packing is nearly novel in American history.
The article concludes by explaining why the elected branches have sought and how they have managed to successfully curb the Supreme Court without leaving a permanent taint on its legitimacy. In an age of rising populism, the next step for scholars of constitutional hardball and departmentalism is to set outer boundaries on the attacks on the Court that they encourage.
In formulating a response to autocratic tendencies in Western democracies, scholarship has relied on conceptualist legal theory. In Europe in particular, critics of the court packing programs of illiberal governments have developed rigid theories of the rule of law and of judicial independence that have been leveraged by the courts. Further on the left, critics have argued that recent governance crises have exacerbated the contradictions between “capitalism” and “democracy,” leading up to a form of authoritarian liberalism. What they share is a reliance on the necessary logical implications of the coherence of these concepts. Critics have thereby misunderstood the nature of Europe’s constitutional crises and missed an opportunity to explore potential avenues for constitutional transformation, which are particularly important in times of populist contestation. Scholarship should overcome conceptualism to better understand and respond to our political circumstance.
Populist leaders and rising political Elites differs in their attitude towards norm breaking. Some fundamentally believes in norm breaking and aim for a completely new constitutional order. But some utilizes a rhetoric of norm breaking as a mean of capturing and using existing institutions to their advantage. This group – which I will call Instrumental Norm Breakers (INB's) – need to preserve a credibility of the threat of norm breaking but in a plausibly deniable manner. It does so, I claim, through norm-trolls, players with an ideological and institutional proximity to the INB, who maintain a radical and disruptive strategy of norm breaking. Norm-trolls feed the constitutional order with manageable instability, for the INB to use in order to compromise on institutional co-optation. The article will stage the above institutional dynamic through an Israeli case study – the struggle of selecting Supreme Court judges and the aim of changing the Attorney-General's legal capacities.
How do constitutional norms change and ultimately collapse? And is there something actors can do to influence these processes? This article argues that although norms can be understood, following H.L.A Hart, as a “primitive” component in our political systems, constitutional norms can attain some of the credentials Hart believed could be attributed exclusively to law. The Article identifies a set of concrete strategies that constitutional norm entrepreneurs (who wish to change present norms) and constitutional norm anti-preneurs (who wish to safeguard present norms) can use to try to manipulate constitutional norms. The Article concludes by implementing this framework to our present moment of democratic recession. It asks, in other words, what constitutional norm anti-preneurs can do to halt further encroachment upon valuable constitutional norms that appear crucial to the resilience of democratic systems.
This paper asks whether comparative constitutional law already has and if not whether it should develop an academic anti-canon in line with US constitutional law’s anti-canonical set of cases and dissents that Jack Balkin and Sanford Levinson argue is a resource for pedagogy and scholarly theorizing (think Dred Scott, Plessy, Korematsu…). Although democratic erosion and the rise of populism are growing themes, the subject is studied mostly from the vantage of political science (i.e., as the unacceptable imposition or even assault of partisan politics on the edifice of liberal legality). However, using examples from India, Israel, Turkey, and Egypt, among others, I show that many courts around the world emerging from court-packing, scarred by more political appointment processes, or constrained by new illiberal forces or authoritarian constitutional bargains are still worthy of study and the canonical or anti-canonical status of some of their decisions are still worthy of reflection.