David Kosař

While a slew of recent scholarship has examined the phenomenon of executive overstay, there is little talk about the more complex and equally vexing phenomena of judicial overstay. This article begins to examine the many layers and complexities of judicial overstay by exploring whether the political branches ever seek to prolong abusively the time in office of loyal judges, and if so, by what mechanisms. Illustrating this is not merely a theoretical practice, we label such a phenomenon court‐hoarding, and consider it a subset of the broader category of judicial overstay. Our contribution is two‐fold. First, we argue that while court‐hoarding is a somewhat risky and less‐known governance tactic that is likely to occur only when certain conditions are fulfilled, the potential benefits of court‐hoarding for power consolidation and institutional monopoly power are profound. Second, we contribute to the emerging literature on judicial tenure. More specifically, we add conceptual utility to thinking about judicial tenure—and its abuse—by describing a three‐layer model of court‐hoarding, consisting of a core, a mid‐layer, and a periphery, which correspond to three broad categories of influencing judicial tenure across time and space.

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.