Grands colloques - Les Cours constitutionnelles, garantie de la qualité démocratique des sociétés ? - 124

SCHNUTZ RUDOLF DÜRR

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had prepared and adopted these laws. Let us turn to the various ways in
which governments and parliaments have tried to make the constitutional
courts favourable to the political majority, to discipline them or to block
their work.11

A. Packing the court
While the idea to appoint judges at the King's pleasure is of course much
older12, a famous attempt to 'pack the Court' occurred in 1937, when
President Franklin Roosevelt proposed increasing the number of Supreme
Court judges from nine to 15 in order to make it more 'efficient'. In addition, judges who - until now - have a life term mandate, should retire at 70.
The Supreme Court had struck down important elements of the New
Deal economic reforms. Roosevelt was criticised that he wanted to 'pack'
the court in order to neutralise the judges voting against his legislation.
However, even before the proposal was rejected by 77 to 22 votes in
Congress, judges in the Court found other New Deal legislation constitutional and by 1942, the President had appointed most of the judges even
under the existing rules13.
Court packing is possible when judges can be appointed by the governing
majority alone. Therefore, the Venice Commission always recommends
that constitutional judges - be it all judges or the parliamentary component when several powers appoint the judges - be elected by a qualified
majority in Parliament.14 This should lead to a composition which gives
the court sufficient legitimacy15 for its important tasks. In political life, the
requirement of a qualified majority can lead to deadlocks and therefore

11. A new technique, discussed but not yet implemented in Israel is an "override clause" that would allow the Knesset to cancel the judgments of the Supreme
Court: https://www.timesofisrael.com/netanyahu-consults-with-ex-supremecourt-president-over-high-court-override-bill/; http://fr.timesofisrael.com/
shaked-hayut-et-mandelblit-debattent-publiquement-de-lautorite-de-la-cour-supreme/?utm_
source=French&utm_medium=toi%20website&utm_campaign=toi-geo-iframe (accessed
07/2018).
12. J. Sainty, The Judges of England 1272-1990: a list of judges of the superior courts.
Oxford: Selden Society (1993) OCLC 29670782.
13. B. Cushman, Court-Packing and Compromise (2013), Scholarly Works, Paper 954,
http://scholarship.law.nd.edu/law_faculty_scholarship/954; (accessed 07/2018).
14. CDL-STD(1997)020, The Composition of Constitutional Courts - Science and
Technique of Democracy, no. 20 (1997).
15. At the conference in July 2018, I learned that Andorra is blessed in achieving even
unanimity for the election of the Judges of its Constitutional Court.

https://www.timesofisrael.com/netanyahu-consults-with-ex-supreme http://fr.timesofisrael.com/ http://scholarship.law.nd.edu/law_faculty_scholarship/954

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