The Senate's bare Republican majority is poised to confirm Amy Coney Barrett to a seat on the Supreme Court. But the controversy sparked by her nomination will continue, and Democrats are already discussing whether and how to "pack" the court by creating new seats. That debate, though, and especially the Republican rhetoric against court-packing, is missing an important development: numerous recent efforts across the country, the majority of them spearheaded by Republicans, to pack (and unpack) state courts.
Republican leaders have consistently described changing the size of the Supreme Court (which varied until 1869, when it reached its modern total of nine seats) in dire terms. At the Barrett hearings, Sen. Mike Lee, R-Utah, said such a move would "do great political harm to our government." Sen. Ted Cruz, R-Texas, stated that expanding the court would be "an abuse of power." And Sen. Ben Sasse, R-Neb., went one step further, calling court-packing a "partisan suicide bombing."
But such "bombings" have frequently been attempted at the state level, where courts collectively decide the vast majority of the country's civil and criminal cases. In 2018, more than 33 million such cases were initiated in state courts, compared with 376,000 in federal district courts. State courts decide cases with at least as much importance to individual lives and national policies alike as federal courts do, including crucial matters, such as partisan gerrymandering, that the federal courts have tended to avoid.
That makes the attempts to pack — or unpack — state courts especially important. In the past decade alone, lawmakers in 11 states have introduced at least 20 bills to expand or contract the size of their state supreme courts. The vast majority of these efforts were made by Republicans, often for apparent partisan advantage. That is, many of these lawmakers appear to have attempted to change the size of their highest state court to affect its ideological composition - and two of these attempts have succeeded.
The first so-called success was in Arizona. Early in 2016, a Republican lawmaker introduced House Bill 2537, which sought to expand the Arizona Supreme Court from five to seven justices. The Republican-controlled legislature approved the measure, despite no support from Democrats. Nor was it supported by any of the court's five justices, with the chief justice writing to the governor that additional seats were "not required by the Court's caseload" and in fact would be "unwarranted" given how costly such a proposal would be at a time when other court-related needs were "underfunded." Several news outlets called the bill an attempt to "Bring Back Court-Packing," noting that the Republican governor, Doug Ducey, would select the new justices from a list created by the Arizona Commission on Appellate Court Appointments (whose members the governor nominates). Days later, the governor signed the bill into law. The two new justices (both appointed by Ducey) took their seats in December 2016, tilting that court further to the right.
Georgia offers another example of successful court-packing. In 2016, the Supreme Court of Georgia had four Democratic and three Republican appointees. That spring, the Republican-controlled General Assembly passed a bill expanding the court to nine justices and giving the Republican governor — who promptly signed the bill into law — the power to fill the two new seats in the first instance. By early 2017, then-Gov. Nathan Deal had done so, resulting in a "more conservative-leaning court."
Although court-packing bills have not made it into law in other states recently, some have been seriously considered. A Republican-sponsored bill that would have split the Florida Supreme Court into separate civil and criminal courts of last resort — and added three seats in the process — passed in the state House but failed in the Senate. In Montana, a Republican proposal to unpack the state Supreme Court by removing two seats (the governor was a Democrat at the time) received a hearing but died in committee. Democrats, too, have made a few attempts of late to pack and unpack courts, including in Alabama and Louisiana, though they have no recent successes — perhaps due in part to the fact that Republicans have controlled many more state legislatures in the past decade.
It is nothing new, of course, to see politicians use the rhetoric of principle to advance partisan preferences. Nor do experiences with state court-packing and unpacking offer easy lessons about the politics or wisdom of the enterprise. But the state experience might suggest that norms against court-packing are not as strong as Republican leaders suggest. Thus far, state officials responsible for court-packing proposals seem not to have faced significant political repercussions. On the other hand, neither have such proposals always, or even often, succeeded.
Still, any effort to alter the structure of the courts — whether through their size, their selection method or their jurisdiction — must be carefully weighed against the very real threats that doing so would pose to judicial decision-making and independence, which is hard to measure in the short term.
That is why the debate over the size of the U.S. Supreme Court, even if sparked by Barrett's nomination, cannot end with her confirmation. There are deeper and lingering questions about the size, structure and function of all courts — questions that should be asked, even if the answers are not immediately clear. And arguments over those questions must be informed not by what seems politically expedient but with what has already been politically attempted.
One of the central tasks in law is grappling with precedent — the principles laid down by prior decisions. Lawyers and judges can argue why certain precedents are on point, or why they must be distinguished in some way. What they cannot do is ignore them. There may be reasons to distinguish state courts from the U.S. Supreme Court, but Republican leaders have not offered any. Instead, the current Republican argument against court-packing simply ignores precedent that Republicans themselves set.
Levy is a professor of law at Duke Law School and author of "Packing and Unpacking State Courts," published in the William & Mary Law Review earlier this year. This piece was written for The Washington Post.