Gov. Spencer Cox said he supports expanding the Utah Supreme Court from five to seven justices — something he had previously stopped short of committing to — and does not consider it to be “packing” the court in the aftermath of bitter disputes between the justices and the Legislature.
“It’s something that I do support,” Cox said during a news conference Tuesday. “I support getting more resources to the courts generally.”
That includes, he said, expanding the court of appeals and the district courts, as well, to speed up how long it takes for cases to make their way through the courts.
“We’re not the state we were 40 years ago. We’re not the state we were 20 years ago, from a size perspective,” Cox said. “There’s a reason most medium-sized states to larger states start to move to the seven-to-nine justice range.”
The expansion of Utah’s high court was originally proposed earlier this year after the court had dealt a series of defeats to Republican lawmakers — halting a law banning almost all abortions in the state and limiting the court’s ability to repeal citizen-passed ballot measures.
Because the number of justices on the court is set in law, and not the Constitution, it would not take an amendment to change the number.
When the idea was floated of expanding the U.S. Supreme Court during President Joe Biden’s administration, Republicans cried foul, accusing Democrats of trying to tip the balance of the court by packing it with liberal justices.
Cox said it would be “weird” to look at expanding Utah’s courts that way, because all five of the current justices have been appointed by Republican governors and confirmed by Republican senators. He acknowledged there is frustration among Republican legislators with the court, but “I didn’t have that same consternation, and I think it’s a good idea.”
The Utah Supreme Court has issued 58 opinions so far this year, 47 last year, but 27 in 2023. The average number of decisions over the past decade is 61, and over the last 20 years, the average was 72 rulings.
Last month, when Cox announced the nomination of Judge John J. Nielsen to fill a vacancy on the Supreme Court, he said expansion was an idea “worth considering,” but didn’t endorse expansion.
In an interview at the time, Chief Justice Michael Durrant said expansion would likely slow down the court.
“We care about how quickly we get [a ruling] out very much, but more than anything else, we want to get it right under the law, under the Constitution,” he said. “Seven can make it longer, more people to disagree. … Five seems to be a sweet spot, at least for Utah, right now.”
Cox said that when he was interviewing candidates for the most recent vacancy on the court, “five of the six of them said their number one concern with the Supreme Court was the time it was taking to get decisions. So this is not me.”
With Nielsen set to take his seat on the court, Cox will have appointed three of the five justices. Expansion would mean he would have filled five of the seven seats and, with Durrant expected to retire in the coming years, would have put six of the seven on the bench.
States have not frequently expanded their high courts, but in 2016, both Arizona and Georgia added two justices to their courts.
Arizona went from five to seven amid criticism from Republican lawmakers that the court was not conservative enough. Georgia’s grew from seven to nine, which flipped a 4-3 Democratic majority on the court to a 5-4 Republican advantage.
The number of rulings issued by Arizona’s court increased from 39 to 43 on average since the expansion. Georgia’s court has averaged fewer decisions since justices were added.
