TUCSON, Ariz. — Arizona’s Supreme Court had five judges for 56 years. But on December 19, 2016, thanks to a GOP-authored bill that was opposed by every Democrat in the state Legislature, Republican Governor Doug Ducey held a ceremony in the Old Capitol building to swear in a sixth justice, and then a seventh.
In all, Ducey has appointed five of the seven justices on the state court, taking a personal interest in vetting candidates with questions designed to ferret out a fidelity to textualism and an inclination to uphold, rather than overturn or tinker with, the law. His appointments, including the addition of the two new justices, have eliminated the court’s progressive caucus and swung it from a more moderate conservative tilt to one that emphasizes libertarianism, populism, and law and order, in line with Ducey’s own views. And the ages of its younger members mean the court likely will stay that way for years.
As Democrats in Washington debate expanding the nation’s Supreme Court beyond nine justices if they win the November election—and many political observers react with horror, either real or feigned, at such a violation of American norms—much less understood is that these changes are not uncommon at the state level. According to Duke University law professor Marin K. Levy, at least 10 states have attempted to change the size of their courts over the past decade, with Arizona and one other state—Georgia—succeeding. And most of these efforts were spearheaded by Republicans.
How has it gone? As the debate over court-packing grows more contentious in the presidential election, Arizona offers something of a window into how these expansions can happen and the long-term impact they can have.
The addition of two new state Supreme Court seats in Arizona, the result of a funding bargain struck between the Legislature and the courts, didn’t generate anywhere near the same political rancor as the U.S. Supreme Court-packing debate. For one thing, the state court didn’t tip from liberal to conservative—it just became marginally more conservative. For another, the idea had been floating around Arizona politics for years: When architects set out to design the current Supreme Court headquarters in 1989, they constructed it to accommodate seven justices, seemingly assuming that a day would come when lawmakers would add justices, as allowed under a state constitutional amendment.
GOP lawmakers pitched the idea of expanding the Arizona Supreme Court by arguing that businesses needed clarity on the law more quickly than five justices could provide, and that the growing state needed more voices on the bench to represent its diverse citizenry. While Ducey consistently has said he was not packing the court for political purposes, Republicans acknowledge they wouldn’t have proposed the change if it would have meant handing over two seats for a Democratic governor to fill.
“I admit it that if there were a different governor, I would have different feelings,” says J.D. Mesnard, the GOP state lawmaker who sponsored the 2016 expansion legislation.
In the aftermath, even some Democrats say the impact on the court’s rulings has been limited. But the expansion—an early priority for Ducey’s office—helped to cement a lasting legacy: Ducey holds the record for the most judicial appointments in Arizona history, having moved quickly since he took office in 2015 to fill seats at all levels of the judicial system. (His five conservative male Supreme Court appointments notwithstanding, Ducey has a record of appointing women and members of other political parties to lower courts.)
And in the long term, some observers have another worry: As demographic trends shift Arizona from a red state to purple, potentially even toward Democratic control, that won’t be reflected in its highest court. Thanks to the Republican-led expansion, the conservative makeup of Arizona’s Supreme Court likely will stay in place for more than a decade.
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Over the years, state lawmakers had occasionally kicked around the idea of expanding Arizona’s courts, including a 2015 proposal that the court system successfully beat back.
In 2016, a new opportunity arose. After years of recession-era budget cuts and fund sweeps, the court system was facing a financial crisis. Republican lawmakers—reeling from a series of state Supreme Court decisions rejecting their attempts to interfere with redistricting and cut education funds—set their gaze on the state courts’ budget, threatening to sweep an additional $6 million from juvenile probation, drug treatment and funds for jurors on lengthy trials. The courts resisted.
“If y’all need revenue, we understand that,” Amy Love, who lobbied on behalf of the court system, told lawmakers during a budget hearing. “We just don’t see anyone else getting swept, not like this.”
That same year, the legislation to expand the court reappeared. Mesnard, the bill’s sponsor and a self-described geeky student of government structure, pitched expansion as a way to decentralize power from five justices, offer more opportunity for diverging opinions and bring Arizona’s court into line with other states of similar size, many of which have seven or more justices on their supreme courts.
All five Supreme Court justices opposed the expansion plan, and the courts dispatched their lobbyist to again hammer the message that the idea was unnecessary, costly and political.
Republican lawmakers, however, saw an opening, and made the courts an offer: Back the court-packing plan and see a windfall of more than $10 million in desperately needed funding, including raises for judges and salaries for the two new justices, or oppose it and face further crippling budget cuts.
The proposal garnered a few headlines and some angry letters from judges, but it never caught the public’s attention as calls to expand the U.S. Supreme Court have. A local newspaper columnist compared the proposition to the court prostituting itself to the ruling political party, noting that once the courts had signaled they were for sale, Republican lawmakers immediately started haggling over the price. But Scott Bales, then the chief justice on the court and its only Democrat, wrote an op-ed in the Arizona Republic saying that while the expansion plan was unnecessary, the money was crucial.
In the end, lawmakers offered the courts only about half of what they had originally bargained for. The Legislature still cut $5 million in funding from the court system, rather than the $6 million they had threatened, and offered judges on the trial, appeals and supreme courts a 3 percent raise over two years, rather than the 6 percent raise they had agreed on.
Republican lawmakers passed the court-packing bill on party lines. And, despite a letter from Bales revoking his previous support for the expansion and urging Ducey to veto the legislation and the budget cuts, the governor signed both into law.
Ducey, in a letter accompanying his signature on the court expansion bill, argued that he wasn’t packing the court because, unlike the president, he can’t nominate whomever he wants. Arizona’s merit selection system for judges requires applicants to be screened by an independent judicial nominating commission made up of lawyers and members of the public who are nominated by the governor and confirmed by the state Senate. Each time a court vacancy occurs, the commission must send the governor candidates representing different political parties.
“Some, particularly national activists and media who aren’t familiar with our system here, have inaccurately described this as court packing,” Ducey wrote in his letter. “That’s just wrong.”
The reality is a bit more complicated.
Although an earlier state Supreme Court pick, independent Clint Bolick, had faced some pushback for his work at the conservative Goldwater Institute and for being seen as too cozy with Republican lawmakers, Ducey’s next two picks—the justices who would fill the expanded court—drew considerably less criticism. Republicans Andrew Gould, a court of appeals judge who had worked as a trial court judge and prosecutor, and John Lopez IV, a former solicitor general in the state and federal prosecutor who was the first Hispanic ever appointed to the court, were widely viewed as conservative, but not outwardly political. James Beene, whom Ducey chose in 2019 as fourth appointment, even received some praise from Democrats.
Yet, Ducey’s fifth Supreme Court appointee—Bill Montgomery, a controversial prosecutor and longtime ally of former Maricopa County Sheriff Joe Arpaio—drew a firestorm of criticism from those who saw him as too political for the court. The American Civil Liberties Union described him as “the most unqualified candidate” on the governor’s list and said Montgomery’s office had “deep history of misconduct and corruption.” (Allies of Montgomery sent letters to the judicial nominating commission calling the ACLU’s attacks “false charges” that the organization was “cynically using in an effort to raise money.”) After the commission rejected his application for Ducey's fourth vacancy in 2019, Ducey simply replaced the three commissioners who had voted against Montgomery. Soon enough, his name made it to the governor’s desk, and he was seated on the court as Ducey's fifth and likely final appointee.
A body that had four conservatives and one liberal when Ducey took office now consisted of seven conservatives and zero liberals.
To some Arizonans, it was Ducey’s stacking of the commission to get Montgomery through that made clear that the expansion was a partisan effort. But Daniel Scarpinato, Ducey’s chief of staff, disagreed in a recent interview, noting that the expanded court hasn’t always ruled the way Republicans would like. He pointed a decision this year allowing an income tax hike initiative to remain on the ballot, and another allowing Phoenix’s airport to increase fees on Uber and Lyft rides.
Ducey knew the reaction that his choice of Montgomery would spark, and scheduled the announcement for a time when reporters were consumed with other news. The governor’s office also broke tradition by refusing to tell reporters when or where Montgomery’s swearing-in event was to be held. So the press staked out the governor’s tower to try to get in a few questions with the newest justice after his private swearing-in ceremony. Instead, Montgomery got in his car and hit the gas as he drove out of governor’s parking lot, tires squealing briefly as he sped away from the state capitol toward the Supreme Court building.
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Mesnard, the lawmaker who sponsored the expansion bill, maintains that the effort was nothing like the “packing” that Democrats in Washington are considering now. Unlike national Democrats, he says, his motivation wasn’t to change the court’s ideological composition.
“I wasn’t trying to achieve a specific end,” he says. “It wasn’t like, ‘I don’t like the rulings coming out, so I want to add more to tilt it a certain way.’”
Still, he acknowledges that he wouldn’t have pushed the legislation if he were handing over two seats on the high court to a Democratic governor. “It’s impossible to separate the politics from that type of decision,” he said in a recent interview. “I wasn’t going to dance around it or pretend that there weren’t serious political implications.”
Scarpinato, Ducey’s chief of staff, also points to the fact that, unlike U.S. Supreme Court justices, Arizona’s judges can serve only until age 70 (though they frequently retire before they reach that limit). Justices also face retention elections two years after being appointed and again every six years thereafter. “It’s very different from the discussion that’s happening at the federal level, which is largely about changing the rules of regular order to affect policy outcomes,” Scarpinato adds.
Many Democrats, however, saw a nakedly partisan power grab. “The only reason why you would add justices to the court is to pack the court for political gain,” then-state Senator Steve Farley, a Democrat, said during debate about the legislation. “If you don’t like the decisions the Supreme Court is making, you don’t pack the court. Franklin Delano Roosevelt learned that in the 1930s.”
Much like Roosevelt, Ducey’s efforts to pack the court didn’t cost him politically: Both went on to win decisive reelections.
Patricia K. Norris, a retired appeals court judge in Arizona who urged lawmakers in 2016 not to expand the court, says that while the original five-member Supreme Court was largely conservative, the justices called balls and strikes, and sometimes their rulings went against the wishes of the ruling political party. “They tended to be, well, independent,” she says. “And I think this whole expansion—which was completely not justified for any good reason—was designed to change the philosophical leaning of the court by changing the structure”—the very definition of court-packing, she says.
The expansion scheme affected the outcome of at least one recent landmark case. A trial court ruled that when a calligraphy business had refused to make invitations for a gay wedding, it was violating Phoenix’s anti-discrimination ordinance, and an appeals court agreed. But the newly expanded state Supreme Court reversed the lower courts, writing a narrow opinion siding with the calligraphy business without giving business owners blanket protection to discriminate against gay couples. That 4-3 ruling would have come out differently without Ducey’s two additional justices, the Arizona Capitol Times found in an analysis of the decision.
Despite this ruling, Democratic state Senator Martin Quezada, a lawyer who led the fight against the bill in 2016, says Democrats’ fears about the political implications have proved to be “a little overblown,” at least in the short term. Quezada now thinks Republicans were engaged in more of a long-game strategy designed to keep Democrats from enacting progressive policies for another generation, as a bulwark against the voters who are electing Democrats in increasing numbers.
Ducey’s five Supreme Court appointments in his six years in office have cemented a conservative legacy that will long outlive his governorship and, likely, the Republican majorities that have dominated the state capitol for more than 50 years. Three of the five conservative men Ducey has appointed are younger than the 56-year-old governor.
“As we turn blue, I think there’s a belief that we will do radically leftist policies, and those will be challenged and that court will be the backstop,” Quezada says. “And I can’t say it’s a bad strategy on their part. The state is turning blue, and that is a good way to maintain a backstop through the judicial system.”
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