A word of caution on expanding Korea’s Supreme Court

Milosz Zurkowski

The ruling Democratic Party of Korea (DPK)'s recent legislative proposal to expand the number of justices on Korea’s Supreme Court from the current 14 has ignited a passionate debate. Advocates argue that reform would make the judiciary more representative, correct a long-standing conservative bias and ease the court’s workload. Critics fear the move is less about balance and more about power. Whatever one’s political sympathies, Korea would be wise to look abroad before proceeding. The experiences of Poland and the United States offer sobering warnings.

When Poland’s right-wing populist Law and Justice Party came to power in 2015 by capturing the presidency and a parliamentary majority, a wave of fear swept through Polish civic circles. The opposition worried that the judiciary remained the last check on the populists’ power, while party leaders countered that the courts were elitist, politically biased and hostile to the will of the people. On that basis, the government embarked on an ambitious project of “judicial reform.” They lowered the Supreme Court retirement age to remove senior judges, introduced a new disciplinary system that gave politicians greater power to punish or remove judges deemed disloyal, and expanded certain courts to stack them with loyalists — pejoratively dubbed “neo-judges.”

Defended as technical fixes, in practice these changes enabled the ruling party to increasingly capture the judiciary. Judges who resisted were harassed, sidelined or disciplined. Trust in the impartiality of Poland’s judiciary collapsed. The European Union condemned the reforms as violations of democratic norms and launched infringement proceedings. Nearly a decade later, after the populists’ fall from power, Poland’s Supreme Court now has competing chambers that issue contradictory rulings, deepening uncertainty and further eroding public trust — a clear illustration of how such reforms, even if well-meaning, can breed dysfunction.

The American experience, while less extreme, is equally instructive. In the 1930s, President Franklin Delano Roosevelt, frustrated by a conservative Supreme Court striking down elements of the New Deal, proposed expanding the bench to secure a friendlier majority through the Judicial Procedures Reform Bill. The plan met fierce resistance, not only from Republicans but also from Roosevelt’s own Democratic allies, who feared it would undermine judicial independence. Ultimately, the plan failed and became a lasting warning in U.S. politics: Attempts to “pack the court” are seen as political poison. Even the mere suggestion of expanding the Supreme Court was destabilizing, sparking a backlash that weakened Roosevelt’s political capital.

When some progressives revived the idea in 2020 by proposing bills to expand the U.S. Supreme Court to 13 justices to counter its 6-3 conservative majority, then-President Joe Biden distanced himself, appointing a commission that ultimately recommended against expansion.

Like Poland and the United States, Korea now faces a moment when frustration with the judiciary tempts political intervention. But the lessons from abroad are clear: Structural reforms to the courts that are driven by politics tend to weaken rather than strengthen judicial authority and independence.

Korea’s situation is, of course, different from the Polish and American cases. The ruling Democratic Party of Korea’s proposal does not appear to include forced retirement purges or the introduction of broad disciplinary powers. But the underlying logic of changing the structure of the Supreme Court in part to shift its political orientation remains strikingly similar.

Korea should take these lessons seriously. Politically motivated court restructurings can have unpredictable and adverse consequences. Further, once the principle of independence is compromised, a dangerous cycle can begin. If today’s political majority expands the court to secure a friendlier bench, tomorrow’s majority will be tempted to do the same. Over time, the Supreme Court grows not only in size but also in fragility, its authority and independence eroding with each round of political tinkering. Even the suggestion of politically motivated changes can shake public trust.

We should not forget Korea’s own history. Under past authoritarian governments, the courts were often treated as instruments of political control. Judicial appointments and rulings could be steered by the executive branch, undermining public trust and leaving scars that lingered throughout Korea’s democratic transition. It took decades of reform and civic pressure to rebuild the judiciary into a more independent institution. This achievement should not be lightly put at risk.

Frustration with the Supreme Court may be understandable. In Korea, critics point to its insularity — 95 percent of its justices hail from elite law schools, there are few women and it has a perceived conservative tilt in labor and election cases. The Supreme Court’s conservative bent is seen by some as rooted in South Korea’s turbulent political history, where the judiciary evolved from a tool of authoritarian control to an independent body, but still has lingering biases in appointments and culture.

Calls for greater transparency and accountability may have merit. But reform should strengthen independence, not weaken it. Expanding the Supreme Court for political reasons risks blurring that line. It may deliver a short-term advantage, but at a long-term cost that could outlast any electoral cycle.

There are alternatives. Reforms could widen the pool of candidates, make selections more transparent and public, set clearer appointment criteria and enforce stricter term limits to prevent entrenchment. These steps could strengthen confidence in the courts while respecting the judicial independence guarantee under Article 103 of the Korean Constitution.

Korean courts, despite their flaws, remain among the most respected in the region. Korea ranks highly in global measures such as the World Justice Project 2024 Rule of Law Index, where it placed 19th out of 143 countries. It would be a tragedy to imperil that achievement by adopting a tactic that has proven corrosive elsewhere.

Some may see the Supreme Court expansion as a way to correct an imbalance. But the Polish and American examples — and Korea’s own history — should serve as reminders that judicial independence is hard won and easily lost, and that even well-intentioned reforms can have unintended consequences.

The surest path to justice is not to treat the courts as battlegrounds, but to preserve them as sanctuaries from political warfare.

Milosz Zurkowski is a Polish-born, New York-licensed lawyer who has lived in Korea for over 20 years while working at leading Korean law firms including Kim & Chang and LIN. The opinions expressed here are the author’s own and do not represent those of his firm.