Garcia Holgado, Benjamin & Sánchez Urribarri, Raúl. Court-packing and democratic decay: A necessary relationship? Global Constitutionalism 12(2): 350–377 (2023).
This article challenges the common assumption that court-packing and democratic erosion are inherently linked. Drawing on rich case studies of Argentina under Carlos Menem (1989–1999) and Venezuela under Hugo Chávez and Nicolás Maduro (1999–present), the authors argue that not all court-packing is created equal. Instead, the motives behind court manipulation are decisive in determining whether it accelerates democratic decay. They distinguish between policy-driven court-packing, where executives expand courts to ease policy implementation, and regime-driven court-packing, where executives reshape the judiciary to dismantle checks and pave the way for authoritarianism.
The Argentine case shows how court-packing can serve narrow policy goals—Menem expanded the Supreme Court in 1990 to fast-track neoliberal reforms—without triggering backsliding or altering regime fundamentals. Argentina’s institutional architecture, electoral competition, and democratic indices remained stable throughout Menem’s presidency. By contrast, in Venezuela court-packing was part of a broader project of regime transformation: Chávez and later Maduro repeatedly altered the composition of the high court to remove institutional obstacles, validate illiberal measures, and criminalize political opposition. The Supreme Tribunal became a key instrument in constitutional manipulation, enabling the transition from competitive democracy to full authoritarianism.