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Does Size Matter? The Latest Battle Over State Supreme Courts

Over the past decade, legislators in several states have sought to expand or reduce the number of justices on their highest courts. In some cases, they admit their intent to tilt the ideological balance.

Arizona state Rep. J.D. Mesnard
(AP/Bob Christie)
*Last Updated May 19, 2016 at 11:20 a.m.

J.D. Mesnard has heard all the complaints. Mesnard, the speaker pro tempore of the Arizona House, sponsored a bill to expand the size of the state Supreme Court from five justices to seven. It was immediately lambasted by liberals as a "court-packing" scheme, a partisan ploy to ensure GOP control of the already conservative court.

The Arizona bill, which got Republican Gov. Doug Ducey's signature, comes on the heels of a similar court expansion in Georgia. Last week, GOP Gov. Nathan Deal signed legislation to increase the number of justices on that state's Supreme Court from seven to nine. Between those new seats and expected retirements, Deal will likely be able to appoint a majority of justices by the time his term runs out in 2018.

When supreme courts were expanded in the past, it was typically the result of a larger revision of the state constitution, said Bill Raftery, an analyst with the National Center for State Courts. Over the past decade, however, legislators in several states have sought to expand or reduce the size of their supreme courts -- in some cases admitting their intent to sway the ideological balance. 

"In several of these instances, the legislators have been very clear that they want certain decisions by their state courts of last resorts to be changed, or they want future decisions decided a different way," said Raftery.

Mesnard insists that wasn't his desire. A bigger court, he argues, could handle a bigger workload and perhaps better reflect the diversity of the state. Since Arizona's Supreme Court was last expanded in 1960, the state has grown considerably -- from a population of just over 1 million to nearly 7 million.

Similar arguments about growth were made in Georgia. But Mesnard says his main motivation was diffusing power -- not expanding the GOP's reach into the judiciary.

"More legal minds is better than fewer legal minds," he said. "When it comes to power, that power should be disseminated to many people -- or at least more people."

Mesnard concedes that there's no separating policy from politics when you're talking about the highest court in the state. If Democrats were in charge in Arizona, he knows his fellow Republicans would question a proposed expansion.

Any time legislators try to tinker with the size of their states' supreme courts, they're accused of eroding the independence of the judiciary and seeking partisan gain. In part, that's because of the lingering memory of President Franklin D. Roosevelt's "court-packing" scheme in the 1930s. He wanted to add as many as six new justices to the U.S. Supreme Court, which had disapproved of much of his New Deal legislation.

But wariness also stems from the fact that the judiciary has become increasingly caught up in partisan politics, with millions spent on some state supreme court races. In West Virginia, for example, GOP and pro-business groups spent more than $3 million on a campaign against Justice Brent Benjamin. Voters ousted him on Tuesday.

In Kansas, the state Senate this year passed a bill that would have allowed the impeachment of justices who were seen as having usurped the authority of other branches. That bill died in the House.

Last year, North Carolina passed a law to let Supreme Court justices face retention elections, meaning people would vote yes or no to a justice staying on the court as opposed to picking between them and actual opponents. It was seen as an effort to preserve the court's conservative majority.

In February, a judicial panel ruled that such a change requires a constitutional amendment. That ruling was upheld last week by the North Carolina Supreme Court on a tie vote. (A justice who now faces a political opponent this year recused himself.)

Several of the debates about court sizes have taken place in southern states such as Alabama and Florida, where the apparent ideological leanings of the courts have been slower to reflect the changing partisan culture.

"The judicial branch has lagged behind the other two branches in the Republican wave that's taken over state government in the South," said Billy Corriher, director of legal research at the left-leaning Center for American Progress.

Even though Mesnard's bill became law in Arizona, it's not certain the court will become much more conservative as it grows. But it might. Gov. Ducey selected Clint Bolick, a libertarian legal activist, to sit on the state Supreme Court in January. 

The new law not only expands the court, it also increases funding for the judicial branch and gives raises to judges. The 1960 expansion included similar enticements.

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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