Republicans have not traditionally been fans of Franklin Roosevelt, but in statehouses across the country they are trying to emulate one of the Democratic president’s most notorious schemes: court-packing.
The latest effort is in Arizona, where the GOP-controlled legislature has passed a measure to increase the number of justices on the state’s Supreme Court to seven from its current five. Governor Doug Ducey, a Republican, must now decide whether to sign the bill, which has become enmeshed in negotiations over increased funding for the judiciary and raises for state judges. Republicans enacted similar legislation earlier this month in Georgia increasing the number of justices on the state Supreme Court to nine, from its current seven.
“It’s part of a larger trend that’s occurred over the last eight to 10 years,” said Bill Raftery, an analyst at the National Center for State Courts. Raftery has tracked efforts in Florida, South Carolina, North Carolina, and Iowa to manipulate the number of justices on courts of last resort ostensibly for political gain. Not all of them involve bids to add justices—in Montana and Alabama, Republicans tried to reduce the number. And not all of them fall strictly along party lines. In Florida, Republicans in the Senate blocked legislation that was passed by Republicans in the House. In Michigan in 2008, unions were caught hatching a plan to reduce the size of the Supreme Court by removing a pair of Republican justices. The effort was blocked by the state supreme court.
Nevertheless, the spike in attempts in recent years coincides with electoral victories by Republicans at the state level and is raising alarms among judicial watchdogs. “It raises the concern that it is based on political motivations, and the line between politics and judges is being blurred,” said Alicia Bannon, a senior counsel at the Brennan Center for Justice.
In Arizona, the expected expansion has been the culmination of a years-long effort by Republican legislators that has divided jurists and the public alike. Proponents have pointed to the state’s growing population: It has tripled since the last time Arizona expanded its Supreme Court, to five justices from, in 1960. Never mind that by this logic, the U.S. Supreme Court would have a few dozen justices by now instead of its current nine (actually eight, because of Republican opposition to filling Justice Antonin Scalia’s seat).
The members of the Arizona high court initially opposed the expansion on the grounds that its workload didn’t justify additional justices. But earlier this spring, the Arizona Judicial Council—a body comprised of judges, administrators, attorneys, and members of the public—endorsed a proposal that packaged the Supreme Court expansion with funding increases and raises for judges throughout the state court system. And in an op/ed for the Arizona Republic in April, the state’s chief justice, Scott Bales, defended the quid pro quo agreement even as he acknowledged the court had no need for more justices and would oppose the change on its own.
So is the expansion effort by Arizona Republicans the same as court-packing? The term has taken on slightly different definitions over the years. Most recently, Republicans in Washington tried to accuse President Obama to “court-packing” when he wanted to fill three existing vacancies on the D.C. Circuit Court of Appeals—an attempt at rhetorical misdirection that was widely mocked. In Arizona, there are a couple of key differences between the GOP effort and FDR’s bid to secure approval for New Deal legislation in the 1930s by adding more of his own appointees to the nine-member Supreme Court. For one, even critics of the Arizona plan say it is not motivated by specific legislation or a specific case. And the appointment process is different, too. The governor must select judges from a group recommended by the Arizona Commission on Appellate Court Appointments; he could still choose candidates from his own party, but his power is more limited than a president’s. Yet there is little dispute that conservatives have pushed the expansion with the goal of padding the court during Republican gubernatorial administrations. The sponsor of the bill, state Representative J.D. Mesnard, acknowledged that “if there were different person appointing, I might feel less comfortable.”
“These people just want more control,” said Mark Harrison, a Phoenix attorney who is chairman of Justice at Stake, a national judicial advocacy group. To Judge Patricia Norris, who serves on the Arizona court of appeals, the effort counted as court-packing because it aimed to tip the balance of the supreme court through an immediate structural change, rather than the natural replacement process that occurs over the course of many years. Equally problematic, she said, was the bartering that precipitated it. “The expansion was completely unjustified and unwarranted,” she said in an interview Monday. “The money and the needs of the court, which are in fact legitimate and serious, needed to be independently evaluated. I opposed any linkage of the two.”
“It basically allowed the public to perceive that the court was dickering for dollars,” Norris added.
In the end, legislators did not give the court system everything the judges wanted in exchange for their support—the funding increase was smaller, as was the 1.5 percent annual raise for judges. “It’s not all bad, but it’s not what the Judicial Council had expressed support for,” said Heather Murphy, a spokeswoman for the Supreme Court. On Monday afternoon, the bill to add two new justices to the high court was still sitting on Ducey’s desk, waiting nearly a week for the governor’s signature. Might Ducey be having a last-minute change of heart? Despite the delay, critics of the plan said that was unlikely. “My understanding is that the governor supported the expansion, wanted the expansion, and I have no doubt in my mind that he will sign that bill,” Judge Norris said.