Tucked in on Page 38 of Gov. Spencer Cox’s recent budget proposal is a $2.8 million request that has the potential to reshape how Utah government functions.
Although there’s no description of what it would be used for, it is intended to add two new justices to the state’s Supreme Court as well as two to its Court of Appeals.
Cox has said the additional posts are needed to keep pace with Utah’s mushrooming population, but it comes at a time when tensions between the court and the Legislature are boiling over.
Republican lawmakers overwhelmingly adopted a resolution recently that “condemns the Utah Supreme Court’s activist rewriting of the Utah Constitution.” The measure also decries the lower courts for rulings that led to the adoption of a new congressional map.
The court expansion, if it happens, would give Cox — who already appointed self-described “originalist” Justice John Nielsen to the bench — the opportunity to appoint two more justices and remake the court.
Speaking at a recent meeting of the Utah Judicial Council, which administers the state’s courts, Chief Justice Matthew Durrant joked that “I’ve got a new colleague. He’s going to be excellent. He’s been on the court no longer than two days, and we’ve been condemned by the Legislature. So we’ve elected to blame him.”
Durrant’s wry crack marks a moment of levity amid the Legislature’s unfolding dispute with the judiciary. Durrant will be the last chief justice chosen by his court colleagues after Republican lawmakers stripped the justices of the power to make the selection and instead gave it to the governor.
If Cox is given the ability to appoint two additional justices — with the backing of the Republican-dominated Senate — he will have appointed five of what would be seven justices, and with Durrant, now 68 years old, Cox could potentially appoint a sixth, plus a new chief justice, before the end of his second term.
When, during President Joe Biden’s tenure, Democrats pushed for Congress to add justices to the U.S. Supreme Court, Republicans decried it as a blatant court-packing scheme meant to reshape the political leaning of the bench.
“They want to influence judicial rulings,” Utah Sen. Mike Lee, who wrote an entire book blasting “packing” the court, posted on social media last year. “That’s wildly inappropriate [and] would lead to the severe destabilization of our constitutional system.”
Does a growing Utah need more justices?
For his part, Cox said he doesn’t see expanding Utah’s Supreme Court as court-packing or retaliatory. He said his aim is to expedite cases moving through the system and keep up with the state’s swelling population.
“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.”
Former Associate Chief Justice John Pearce, who left the bench Dec. 1 and was replaced by Nielsen, said such a move would be counterproductive.
(Rick Egan | The Salt Lake Tribune) Then-Utah Supreme Court Associate Chief Justice John Pearce, seen here during a recent hearing, says adding justices to the court would be counterproductive and is the "completely wrong answer" if lawmakers want to make the court operate more efficiently.
“If we’re looking to increase judicial efficiency, it’s completely the wrong answer,” he told The Salt Lake Tribune. “Adding justices to the court would have a negative impact on the number of cases the court hears.”
It is more challenging, Pearce said, to get four justices to sign on to an opinion than to get three, and that means gathering more input and making more edits before it can be published.
The larger issue is that there is not a backlog of cases awaiting consideration by the high court, he said. The delays in the justice system are further downstream.
Pearce pointed in particular to the Legislature’s failure to provide additional funding to the attorney general’s indigent appeals division — which extends how long it takes to get criminal appeals briefed and ready for argument — and a backlog at the district court and appeals court levels.
“Where we feel the effect of a growing population is not at the Supreme Court, it’s at the district court and the Court of Appeals,” Pearce said. “That’s where you feel the impact of population growth, and if you really want to impact the judiciary to address the increased population, that is where we would focus.”
In recent years, states have infrequently expanded their high courts. In 2016, Arizona and Georgia added two justices to their benches.
Arizona expanded 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 court majority to a 5-4 GOP edge.
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.
Elizabeth Wright, executive director of the Utah State Bar, agrees that diverting resources to expanding the high court would not improve judicial efficiency.
Besides the $2.8 million annually for salaries for the additional judges and staff in Cox’s budget, the courts estimate it would cost $1.7 million to physically accommodate two new justices and two more appellate judges.
The courts have other budget priorities. The Judicial Council has asked for $6 million for judicial assistants, probation officers and staffing; 10 new judges — eight of them at the district level, one juvenile judge and one for the Court of Appeals; and expansion of the state’s domestic violence court programs.
Investing in those priorities, Wright said, would improve the justice system, expedite the handling of cases, and benefit average Utahns whose contact with the courts is at a ground floor and who never cross paths with the state’s Supreme Court.
The Legislature, she said, appears to have other goals.
“It looks at this point that adding two justices is [intended] to change the ideological makeup of the court,” Wright said, “and that is troubling, because that sends the message that they are political operatives appointed to achieve the political goals of the people who appointed them.”
State Sen. Stephanie Pitcher, D-Salt Lake City, agrees that the timing is troubling and doubts Republican lawmakers are genuine in wanting to help the courts with their caseloads.
“If that was the case, we’d be looking to allocate resources to lower courts. That’s what the courts are asking for,” said Pitcher. A defense attorney, Pitcher said she has a client who has to wait over a year for a trial because of the lower-court backlog.
“It’s just a very obvious effort to try to influence the ideology of the Supreme Court,” she said, “but mask it as a legislative effort to provide more resources.”
Pitcher points to Nielsen’s addition as further evidence of Republicans wanting to push the court in a more conservative direction.
“That was the most political appointment I’ve ever seen,” she said. “They’re clearly unhappy with the rulings that have been coming out, both from the district court and the Supreme Court, and I think they want a different outcome.”
Why the House speaker wants a bigger court
House Speaker Mike Schultz, R-Hooper, who was a proponent of expanding the high court during the legislative session earlier this year, remains supportive of the idea.
“As issues before the Supreme Court become more complex,” Schultz told reporters in October, “I think having more eyes on that is good.”
Schultz has also said that the Legislature wants to protect its power and to be a check on the judiciary.
“The Constitution gives us a wide range of things that the Legislature can do inside of the judiciary,” Schultz said at a recent presentation hosted by the Utah State Bar focused on the tensions between the Legislature and the courts.
(Francisco Kjolseth | The Salt Lake Tribune) House Speaker Mike Schultz, R-Hooper, seen here speaking at a news conference criticizing a judge's recent redistricting decision, has been a proponent of adding justices to the Utah Supreme Court.
“Checks and balances are important. They are there for a reason,” he said. “And we as a Legislature … will do our very best, and we will stay within the Constitution as we look to make sure that we’re protecting the legislative role and the voice of the people through their elected representatives.”
The friction between the courts and the GOP-led Legislature have been building for more than three years.
Courts vs. the Legislature
In 2022, a lower court blocked the enactment of a nearly total prohibition on abortion triggered by the U.S. Supreme Court’s overturning of Roe v. Wade. The Utah Supreme Court upheld that decision, and the Utah law remains stalled.
The courts stopped a ban on transgender girls competing in high school sports, although the lawsuit challenging that law was dropped since the students suing would have graduated before the case was decided.
And last year, the state Supreme Court said that the Legislature violated Utahns’ constitutional right to enact laws through a ballot initiative when the Legislature gutted 2018’s Better Boundaries effort. Republicans attempted to overturn the ruling by amending the Utah Constitution, but the justices again intervened, saying the question on the ballot would have misled voters into thinking they were strengthening the initiative right when, in fact, it would weaken it.
(Francisco Kjolseth | The Salt Lake Tribune) Judge Dianna Gibson, listening to a hearing on congressional redistricting maps in October, has been threatened with impeachment by GOP lawmakers.
The most recent court defeat came when 3rd District Judge Dianna Gibson, based on the Supreme Court’s ruling in the Better Boundaries case, said the Legislature’s congressional map did not comply with the voter-passed initiative and needed to be redrawn.
Republican lawmakers did that, under protest, but Gibson ruled last month that the Legislature’s map was an “extreme” partisan gerrymander and was drawn using partisan voting data — both of which were barred by the initiative. She rejected the Legislature’s map and instead picked one that created a Democrat-leaning district in Salt Lake County.
The decision outraged GOP leaders. Her ruling was lambasted in statements. Some legislators threatened her with impeachment. She received violent threats from members of the public, and GOP lawmakers took the unusual step of passing a resolution condemning the ruling.
Senate President J. Stuart Adams, R-Layton, speaking at the recent Utah State Bar gathering, denounced any threats of violence.
“Even though we have these passionate disagreements, violence will be the destruction of our society,” Adams said. “When these attacks are made at Judge Gibson, both the Senate, the House, the Legislature, [there’s] no place for that. We’re better than that in America. We’re better than that in Utah.”
Wright said that the Bar held its discussion because the rhetoric directed at judges is harmful.
“To undermine our judiciary and make unfair criticisms or suggest they are political hacks or should be impeached undermines our democracy,” she said. “All citizens need to have faith that the system is fair and judges are making decisions on the law and facts in front of them. So it’s dangerous on a physical level and to our institutions.”
Legislators will decide whether to expand the court when they convene for the 45-day session in January. Whether it assuages their anger with the court — or if its just a prelude of other steps they plan to take — remains to be seen.
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