Marin Levy, a law professor at Duke University, says there’s important context missing from the discussion: the recent partisan attempts to pack state supreme courts.
In a study published earlier this year, well before the death of Justice Ruth Bader Ginsburg, Levy documented court-packing attempts in at least 11 states in recent years. Most of those efforts were initiated by Republicans, including the two that succeeded. Moreover, compared with earlier decades, court-packing attempts are now more common and more explicitly partisan.
“The norm against court packing might be more vulnerable than some have thought — at least as it concerns the state courts,” Levy wrote. “If court packing and unpacking were considered strictly verboten, one would not expect to see over twenty different bills to pack and unpack the highest court in eleven different states.”
Here’s a state-by-state rundown of the court-packing attempts Levy documented.
Arizona: Republicans successfully expanded the state Supreme Court from five to seven justices, over the objections of the chief justice, in 2016. Two new justices were chosen by the state’s Republican governor shortly thereafter. The bill’s GOP sponsor directly acknowledged the partisan concerns driving the effort, saying “if there were different person appointing [the justices], I might feel less comfortable.”
Georgia: Georgia Republicans pushed a successful court-packing bill through the legislature in 2016, allowing Republican Gov. Nathan Deal to add two justices to the seven-member court. Deal’s lawyer told the Atlanta Journal-Constitution he hoped the more conservative court would issue rulings that were more favorable to businesses.
Florida: Other Republican court-packing attempts stumbled. In 2007, Florida Republicans attempted to more than double the size of the court, from seven to 15 justices, because they were upset over a ruling that found the state’s school voucher system unconstitutional. In 2011, Republicans proposed splitting the high court in two, adding three justices along the way. The change would have left “the [court’s] Republican-friendly justices as the ultimate arbiter of all the borderline constitutional civil matters,” as the Palm Beach Post put it at the time. That effort also failed to make it out of the legislature.
Iowa: The state Supreme Court’s 2009 ruling striking down the same-sex marriage ban similarly inspired Republicans in the legislature to attempt to pack two more justices into the court. That bill died in committee, in part because Democrats controlled the legislature and the governor’s mansion at the time.
South Carolina: Every legislative session from 1995 to 2010, South Carolina Democratic Sen. Robert Ford introduced a bill to expand the state’s highest court from five to seven justices. Those efforts all failed. A Republican picked up the mantle in 2013 and was similarly unsuccessful.
Louisiana: In 2017, a Louisiana Democrat introduced legislation that would have added two new justices, most likely Democratic-leaning ones, bringing the total to nine. That legislation went nowhere.
Montana: Lawmakers have also attempted to unpack courts, by reducing the number of justices. One such effort was led by Montana Republicans in 2011, which would have eliminated the positions held by two of that court’s most liberal members. The bill’s supporters were frank about their partisan motivations, and it ultimately died in committee.
Oklahoma: In 2017, a Republican who had previously threatened to set himself on fire in response to some court rulings on abortion introduced a bill to shrink the court from nine to five members. At the time, most of the court’s justices had been appointed by Democratic governors. The effort failed.
Washington: In 2013, in what Levy calls “a particularly dramatic interbranch display of hostility,” Washington Republicans introduced a bill to remove four members from the state’s nine-member Supreme Court, immediately following the court’s overturning of Republican-imposed restrictions on tax hikes. The Brennan Center for Justice characterized the proposal as a threat to judicial independence. Levy notes that while the bill failed, Republicans have periodically attempted to revive it in recent years.
Alabama: In 2009, “Democratic Senate Majority Leader Zeb Little introduced a bill to reduce the state Supreme Court from nine justices to seven, by attrition,” Levy writes. Nearly all of the court’s members were Republican and reducing the number of justices would not have changed the partisan balance, leaving the motivations behind the legislation unclear. The bill was not passed.
Pennsylvania: In 2014, state Republicans considered a proposal to reduce the size of the court as part of a larger package that also would have eliminated the office of the lieutenant governor and shrunk the general assembly. It had bipartisan support — a rarity among these cases — but was ultimately not taken up.
The through-line in nearly all these cases, Levy writes, is “that various elected officials pushed for changes to their state Supreme Court when doing so was in their political interest.” In most cases, the court’s ideological balance was at stake: “the proposed attempts to alter the courts were often done in ways that would guarantee adding justices from a political party to shift the ideological makeup of the court in a considerable way,” Levy wrote.
That recent history is difficult to square with Republican attempts to cast a potential Democratic effort to pack the U.S. Supreme Court as a judicial intervention without modern precedent. Such a Democratic effort would be unusual in that in recent years, Republicans have been more enthusiastic about court-packing (and court-shrinking) at the state level.
Shifting the ideological balance of a court in such a way is an example of “constitutional hardball” — when political actors bust norms and exploit rules in ways that aren’t specifically prohibited by the Constitution, but which are nonetheless unusual. Extreme gerrymandering is another example of this, as is the routine use of the filibuster in the Senate.
Many scholars believe that, at the federal level at least, Republicans have been playing this game harder than Democrats. “Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings,” as Joseph Fishkin and David E. Pozen write in the Columbia Law Review.
If Democrats capture the presidency and the Senate this year, leaders in the party will have to choose whether they’re willing to play hardball with the Supreme Court.