Take a trip back in time to 2016, when then-Arizona Gov. Doug Ducey made a controversial move. He expanded the Arizona Supreme Court from five justices to seven. And then appointed two Republicans to fill the news seats.
Democrats at the time blasted the move as an attempt to stack the court with conservatives. But, then-Arizona Senate President Andy Biggs supported it.
“As we continue to grow in the population in this state, and we continue to see an influx of litigation, this is appropriate to get ahead of the curve,” Biggs said at the time. “Arizona is one of the states with the fewest number of justices on the state Supreme Court. There are some much higher than us, and this moving to seven would be an appropriate number at this time, and I support this and ask everyone to vote yes.”
Stacey Barchenger covers state politics for the Arizona Republic and joined The Show to talk about it.
Full conversation
LAUREN GILGER: Good morning, Stacey.
STACEY BARCHENGER: Hey, good morning, Lauren.
LAUREN GILGER: So, Biggs has introduced a resolution calling for a constitutional amendment here to cap the number of justices. This is to do with the U.S. Supreme Court, right?
STACEY BARCHENGER: Yeah, that’s right. He wants to keep it at nine, which is the current the current makeup of the court. He says that this is because some Democrats, and high-profile ones at that, including Kamala Harris, have talked about adding justices to sort of water down the current conservative majority.
LAUREN GILGER: Right. So, as you’re reporting, though, Biggs was involved in making ... Doug Ducey’s move happen a decade ago, expanding the court, right?
STACEY BARCHENGER: Yeah, that’s right. So, I had just noticed his proposed constitutional amendment and got to wondering where he was at a decade ago when Governor Ducey proposed a similar plan here in Arizona. And then went back and found the same clip that that y’all just played of him, you know, being in favor of that expansion.
LAUREN GILGER: Yeah. So, you talked to him about this. He says it’s it’s not the same thing, not the same situation? What did he have to say?
STACEY BARCHENGER: Yeah, I mean, he denied that his motivation was political, you know, that this was court packing to to build a conservative majority in Arizona. He talked about businesses that were frustrated because they have a lot of cases before the court, and they wanted it to be more efficient.
The the problem here is the expansion in Arizona was opposed by the chief justice at the time, who said it wasn’t necessary, that efficiencies were — would be better accomplished by changing other parts of the court system. And a lot of the the argument about efficiency was later proven to not be true. In later years, the court didn’t put out more opinions, and other justices have come out and said that that didn’t that wasn’t actually realized by the expansion.
LAUREN GILGER: Right. Ducey at the time had argued that the expansion of the court, and as we heard Biggs argue there, you know, would help with this growing caseload, as the population got bigger in the state. It’s not only that that it didn’t come to fruition, it almost has done the opposite, right?
STACEY BARCHENGER: Well, yeah. ... I went back and looked at our reporting in the years the years just after the expansion. And, you know, there was no evidence that they had significantly increased opinions they were putting out. There was some sort of ebb and flow, but certainly raised a lot of questions about whether the stated mission of expansion were actually accomplished.
LAUREN GILGER: So, Stacey, what does Biggs have to say about why he wants this constitutional amendment now? Like, why does he not want the U.S. Supreme Court to be expanded?
STACEY BARCHENGER: It’s really it’s really based on, you know, the Democrats that he says are motivated by political reasons, you know, that they they just want to water down the conservative majority that is on on the court. He said he prefers the sort of typical ebb and flow, which is, you know, the president gets to appoint one of the nine, or or three of the nine justices, and that should be sort of the normal way of the ideological tilt of the court.
LAUREN GILGER: So, Gov. Katie Hobbs was also involved a decade ago, right, in 2016? She was a leading Senate Democrat at the time and opposed this move to expand the state Supreme Court. What’s she have to say about this now?
STACEY BARCHENGER: Yeah, you know, she was — this is kind of funny, because she and Biggs overlapped for I think four years in the Senate. And she was one of the vocal opponents as the Senate Democratic leader at the time, called this Gov. Ducey’s court-packing plan. So, I had a chance to ask her briefly about it before my story published, and she said she thought it sounded a little bit hypocritical that Biggs had was now supporting a fixed number of justices on the U.S. Supreme Court.
LAUREN GILGER: And Biggs, of course, bristled at that. These two could very well end up facing each other in, you know, the governor’s election this fall.
STACEY BARCHENGER: Yeah, absolutely. And I know that this story is one example of how much that race might end up with all of us looking back to votes where they diverged, you know, when they were both in the Senate.
LAUREN GILGER: Biggs has also supported a plan, Stacey, to to split up federal courts, right? This is aimed at the 9th Circuit?
STACEY BARCHENGER: Yeah, and he in in our interview, he talked quite a bit about that. This is a longstanding, kind of conservative issue, especially targeting the 9th Circuit, which includes Arizona. It’s kind of viewed as the most liberal of the circuits. His argument is it’s just geographically very diverse, it’s very big, and so it should be — I guess, the states would be better served if you broke it up into a couple of different circuits.
LAUREN GILGER: And that would have massive implications, right, in terms of the the appeals court decisions we often see come down on major cases in in the state.
STACEY BARCHENGER: Yeah, it really could. I don’t know how real that plan to split it up is, and, you know, he brought this up as we were talking about court reform, but it doesn’t seem that it would it would influence the number of justices on the Supreme Court.
LAUREN GILGER: So, lastly here for you, Stacey, how likely is this resolution that Biggs has introduced in Congress to pass?
STACEY BARCHENGER: Oh, totally slim. Not likely whatsoever. It just is very, very hard to get a constitutional amendment across the finish line. You know, it has to pass by a two-thirds vote in Congress and then also be ratified by 38 states. So, that is just such a long shot.
LAUREN GILGER: Yeah. OK, we’ll leave it there for now. Stacey Barchenger covers state politics for The Arizona Republic. Stacey, thanks for coming on. Appreciate it.
STACEY BARCHENGER: Of course, thanks for having me.
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