Thomas M. Keck (Syracuse University – Maxwell School of Citizenship and Public Affairs) has posted Court-Packing and Democratic Erosion on SSRN. Here is the abstract:
When and under what conditions should democratic opposition play constitutional hardball to oppose anti-system parties, especially with respect to judicial reform? The literature on democratic erosion suggests that independent courts may sometimes operate as guardrails of democracy, but also that once captured by anti-system parties, courts may serve as effective agents of democratic erosion. This paper surveys this literature for key lessons regarding the role of courts in polities where democratic erosion is underway. It then draws on the history of Court-packing in the United States in an effort to confirm and sharpen these lessons. Levitsky and Ziblatt’s influential argument is that opposition to authoritarian behavior should avoid hardball and should, instead, “seek to preserve, rather than violate, democratic rules and norms.” Their emphasis on normative preservation, however, fails to distinguish between constitutional hardball in service of democratic erosion and constitutional hardball in service of democratic preservation or renewal. This paper applies the distinction between democratic-eroding and democratic-renewing hardball to the role played by the current Supreme Court in ongoing processes of democratic deterioration in the United States, concluding that Democratic Court-expansion, combined with institutional reform of the judicial selection process, may be the least-bad option for restoring the Court’s role as democratic guardrail.