Republican lawmakers defied a core GOP principle of limited government in 2016 by passing a bill that enlarged the Arizona Supreme Court to seven justices from five.

Their main argument in the run up to the passage of HB2537 was that a growing state needs more justices, ignoring the court’s assertion it was doing just fine handling its current caseload.

The Democratic response was to accuse Gov. Doug Ducey of “court packing,” or trying to establish a strong bloc of conservative justices, an argument for which they had no solid evidence and was tantamount to name calling.

In the end, Ducey got to choose two justices — Arizona Solicitor General John Lopez and Court of Appeals Judge Andrew Gould — who will carry on his legacy probably long after he leaves office.

A 2015 attempt to enlarge the court got nowhere.

Rep. J.D. Mesnard, R-Chandler, sponsored the 2016 version.

The bill breezed along party lines through both chambers with only three Republicans in the House voting against it.

Key Republicans gave various reasons to justify expansion.

Ducey said in his signing statement that other states with equal or smaller populations have more than five justices. He further insisted that the expansion would make the court more efficient and allow it to increase its workload.

“Arizonans deserve swift justice from the judicial branch. Adding more voices will ensure that the court can increase efficiency, hear more cases and issue more opinions,” Ducey wrote.

He sidestepped a question of why it makes sense to spend more tax dollars on the court, saying only that there are “certain services” that need to grow because of the increasing size of the state, such as K-12 education.

Chief Justice Scott Bales advocated a plan by which the Supreme Court would support HB2537 only in exchange for a $10 million budget increase for the judiciary and a pay raise for all judges from the Superior Court level on up. After the Legislature passed a budget that contained some, but not all of its requests, Bales wrote a letter to Ducey, urging him to veto the bill.

Bales said in the letter the court’s caseload hasn’t reached a point at which more justices are needed and there are other underfunded court-related needs.

Bales said the court’s caseload has remained stable for the past decade.

Mesnard said the expansion puts Arizona on par with other similarly-sized states, most of which have seven or nine justices.

He said a larger court would also disperse the justices’ substantial power among more people and it was an opportunity to add diversity. And Mesnard frequently pointed out that the court hasn’t expanded since it went from three justices to five in 1960, and in the intervening decades, Arizona’s population has quintupled from around 1.3 million to more than 6.5 million.

There was no denying the political element.

“There’s always going to be a political consideration,” Mesnard said. “And if there were a Democrat on the Ninth Floor (where the Governor’s Office is located) that would be a political consideration that I would take into account.”

And he said the political reality is that a Republican-controlled Legislature would never give such power to a Democrat governor.

A rare occurrence

Enlarging a state Supreme Court is rare.

Arizona joined Georgia in adding two justices to each of their high courts in 2016, but the last Supreme Court expansion before this year was in Nevada in 1997. The one before that was Connecticut in 1987.

Even if a court is drowning in work, most states have addressed it by enlarging the intermediate courts of appeal, said Bill Raftery, a legislative analyst with the National Center for State Courts.

Raftery said the size of the Supreme Court is written into the constitutions of 24 states, making it more difficult to change, and two states require that courts ask for any change.

Legislatures in the remaining 24 states may expand their courts.

And although Nevada voters added two more justices to its high court in 1997, the court will lose them because a 2014 ballot measure that added an intermediate court to handle appeals also triggered a shrinking of the Supreme Court.

Long-term influence

Justices serve six-year terms and voters decide at the end of that time whether to keep them or kick them off the bench.

No Supreme Court justice who has sought a new term has been turned out of office since that system was put in place by voters in 1974.

And with justices able to serve until age 70, anyone named now likely would have influence long after Ducey has left office.

Ducey’s choice of Republicans Lopez and Gould make for his second and third appointees in less than two years in office. Ducey’s first appointment was Justice Clint Bolick, an independent.

Ducey’s predecessor, Gov. Jan Brewer, didn’t make her third appointment until her fourth year in office, and Gov. Janet Napolitano, who preceded Brewer, only made two appointments in her six years in office.

Gould had been a finalist for the Supreme Court position that went to Bolick.

Ducey said he chose Lopez and Gould because they were the closest to what he wants from the third branch of government.

“I’m looking to someone who has a fidelity to our founding documents: the Declaration (of Independence), the Constitution and the state Constitution, has a love of the law and an understanding of the separation of powers,” the governor explained. “I made the very difficult decision to pick who I thought were the two best.”

A panel that vetted the Supreme Court applicants in October asked them if there were any rulings they would rewrite.

Lopez said he would redo NFIB v. Sebelius, the U.S. Supreme Court case that upheld the Affordable Care Act.

“I happen to agree with the dissent in that case – not on policy grounds – but because of the statute and the way it was written and in the way, in my view, it should have been interpreted,” Lopez said.

He said the high court rewrote the statute to save it.

Answering the same question, Gould said he would redo Dred Scott, which held that African American slaves were not considered people. Gould said the decision reflected poorly on the judiciary and showed the court should stay out of social issues and stay within the confines of the Constitution.

“Courts should never issue a decision that results in such civil discord, results in people being so angry, so disenfranchised that it leads to civil revolt,” Gould said.

— Arizona Capitol Times reporter Jeremy Duda and Howard Fischer of Capitol Media Services contributed to this story.