As U.S. Supreme Court kick-starts a conservative legal revolution, Republican politicians are already working hard to ward off potential threats to this hard-earned power. In a June letter to President Joe Biden, a coalition of Republican governors characterized attempts to “pack the Supreme Court for political gain” as “unprecedented.” Even politicians and pundits on the other side of the ideological spectrum have been skeptical of the wisdom of Court expansion. A recent column from The Washington Post’s Ruth Marcus exhaustively previewed the Court’s upcoming assault on democracy and civil rights, only to casually dismiss the notion of expansion as a cure “worse than the disease.”
But while commentators and elected officials fret over the potential consequences, state legislators across the country have no such qualms. Over the past decade, lawmakers in more than one-fifth of states have attempted to alter the size of their state supreme courts, according to a recent law review article by Duke University School of Law professor Marin Levy. Most of these bills were pushed by Republicans, who were sometimes explicit about their partisan goals in doing so: A decade ago, for example, a local GOP official told Montana legislators that a bill to shrink the high court was necessary to protect the party’s gerrymandered election districts. “Take control of the reins of the Supreme Court,” he urged them. “Show them who is in charge.”
Despite the protestations of Republican politicians, in other words, legislative efforts to tilt the balance of judicial power are not “unprecedented.” At the state level, they are happening with increasing frequency—and the result is usually more Republican appointees on the bench.
In 2016, legislatures in two Republican-controlled legislatures shifted their high courts to the right—or even further to the right than they already were—simply by making them a little bigger. In Arizona, GOP lawmakers expanded the court from five to seven justices, ostensibly to make the court more productive—a rationale rejected by the chief justice himself. One Republican admitted they would’ve been “less comfortable” doing so if the seats had been filled by anyone other than Republican Gov. Doug Ducey. Ducey’s appointments since then have transformed an already-conservative high court into one one of the most conservative high courts in the country.
Legislative attempts to tilt the balance of judicial power are not “unprecedented.” At the state level, they happen with increasing frequency—and the result is usually more Republicans on the bench.
A similar story unfolded in Georgia. After years of trying, Republicans passed a wide-ranging judicial reform bill that expanded the state supreme court from seven to nine justices. Before the expansion, most of the court’s justices were Democratic appointees; the Republican governor’s new appointees, however, created a conservative majority. The supreme courts of both Georgia and Arizona now include a majority of justices linked to the Federalist Society.
The expansion efforts of North Carolina’s Republican-controlled legislature came up short, but not for lack of trying. After voters elected a liberal high court majority in 2016, Republicans suddenly tried to pack the court by empowering the lame-duck Republican governor, who had just been ousted by voters, to fill two new seats on his way out of office. After outraged protests at the state capitol, they instead proposed a constitutional amendment that would’ve transferred to the legislature the power to fill empty seats on the bench. Although voters rejected it at the polls in 2018, conservatives have now moved on to a rough form of court-unpacking, floating the idea of impeaching justices who rule in ways they don’t like.
Legislative tweaks to the size of state courts are not limited to the state’s highest courts. In West Virginia, Republican lawmakers created the state’s first intermediate appellate court this year a—longtime priority for the local business community and the U.S. Chamber of Commerce, which has long spent big to elect pro-corporate justices at the state level. Republican Gov. Jim Justice, who already appointed most of the high court justices during his first term, will fill the new appellate court seats, too.
In North Carolina, where efforts to add Republican justices failed, state courts have stood up for the rights of voters: Judges made it easier to vote by mail during the COVID-19 pandemic, and struck down gerrymandered election districts in 2019. As the state’s redistricting process continues, they could have the opportunity to do so again very soon. But the new conservative high court majorities in Arizona and Georgia are far less likely to protect the right to vote—an ominous trend in two states where Republican legislatures, smarting from President Donald Trump’s defeat in 2020, have passed sweeping voter suppression legislation designed to prevent this history from repeating itself.
Like Senate Minority Leader Mitch McConnell, who famously engineered the confirmations of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Republican politicians at the state level understand the importance of controlling the courts. They have also demonstrated a willingness to do what’s necessary to accomplish that goal, up to and including adding on a few seats. With civil rights, abortion access, and democracy itself on the line, Democrats in Washington who don’t learn this lesson are doomed to live under the reign of unaccountable Republican justices who will reverse progress on every issue they care about.
