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Arizona’s Plan to Pack the Supreme Court

May 3, 2016 | Phoenix Criminal Lawyer

Don’t like the way the Arizona Supreme Court is deciding cases? Want to get an even more conservative group on the bench? Don’t make more convincing arguments. Don’t wait for the terms of the current justice to expire. Don’t get involved in the elections. Simply add new slots to the court, and the (surprise!) Republican governor will get to appoint them for their initial term.

The current scheme is the brainchild of Representative J.D. Messard (R-Chandler), who is pushing HB 2537. According to Messard, the rationale behind the bill is that Arizona’s population has grown, and the additional justices will allow the court to hear more cases. He also contends that the plan would provide more diversity to the court. Forgive our need to apply logic to these statements, but the bottom line is that it doesn’t make sense.

How Are the Justices Chosen?

In order to understand the situation, it’s helpful to know that justices of the Arizona Supreme Court are initially appointed by the governor from a list presented by a “bipartisan committee.” While it may technically be bipartisan, the majority of the committee is effectively chosen by the governor. Justices are appointed for an initial term of two years, and then run for election for six-year terms.

What’s Really Going On?

The representative says he wants the Supreme Court to be able to handle more cases. That assumes, of course, that they can’t handle the current caseload, and/or are declining, in their discretion, to hear cases because they’re just too busy, right? The problem with the argument is that no one, including the Chief Justice, says the increase in population or the caseload justifies the cost (almost $1 million annually) of adding more justices. In fact, a court spokesperson stated specifically that there is no compelling reason to expand the court. As far as diversity is concerned, the governor already effectively controls those chosen as potential appointees.

The bill only makes sense if you consider the thinly-veiled political motive behind it. It is reminiscent of Franklin Roosevelt’s 1937 plan to pack the United States Supreme Court with judges more favorable to his political positions. At the time, Roosevelt was having trouble getting the Supreme Court to rule favorably on a number of issues central to the New Deal. He proposed adding between two and six new justices in order to get his policies through. He was accused – rightfully, many believe – of attempting to undermine the independence of the court.

And that’s really the problem with the Arizona court-packing proposal. The state has three branches of government, just like the federal system: legislative, judicial and executive. They are supposed to be independent. And while complete independence may be wishful thinking, the current proposal seeks to have the legislature alter the balance of power any time that the legislative majority is dissatisfied with the political winds blowing from the Supreme Court.

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