Georgia: Why the state’s unique constitutional provision allows supreme court expansion without voter approval

I noted a few weeks ago plans being developed by Georgia’s governor to expand the state’s Supreme Court from 7 to 9 members. One of the interesting aspects of this is that Georgia is one of 26 states in which the legislature could change the composition of the state’s court of last resort without having to go to voters. However, as discussed below, its language is unique from any other state.

A near majority of states (24) provide in the state’s constitution a specific number of justices/judges. For example Arkansas provides their supreme court is to be made up of “seven Justices, one of whom shall serve as Chief Justice.” Changes would require a constitutional amendment.

Beyond this things get more complex. 2 states (Alaska and South Dakota) have a minimum number of judges, but with anti-court-packing provisions: the legislature can expand the court only if the court itself asks to be expanded. (South Dakota: “Upon request by the Supreme Court the Legislature may increase the number of justices to seven.”)

The remaining 24 states give the legislature power to set the number of seats with more or less freedom in terms of numbers.

  • 8 state constitutions provide no numbers as to the composition of the court, leaving it entirely to the legislature to set the number.
  • 8 other states provide a minimum with no maximum number of seats on the court. For example the Arizona Supreme Court must be made up of “not less than five justices. The number of justices may be increased or decreased by law, but the court shall at all times be constituted of at least five justices.” However note that in some cases there are court-packing restrictions which limit the number of seats that can be expanded at any one time (Iowa) or that require super-majorities in two separate legislative sessions (Virginia).
  • 7 states provide for a minimum and a maximum. Indiana’s Supreme Court is made up of a “Chief Justice of the State and not less than four nor more than eight associate justices”
  • 1 State (Georgia) has a maximum with no minimum (“not more than nine Justices.”)

Details for each state below the fold.

Alabama one chief justice and such number of associate justices as may be prescribed by law.
Alaska three justices, one of whom is chief justice. The number of justices may be increased by law upon the request of the supreme court.
Arizona not less than five justices. The number of justices may be increased or decreased by law, but the court shall at all times be constituted of at least five justices.
Arkansas seven Justices, one of whom shall serve as Chief Justice
California Chief Justice of California and 6 associate justices
Colorado not less than seven justices
Connecticut number not specified
Delaware five Justices
Florida seven justices
Georgia not more than nine Justices
Hawaii chief justice and four associate justices
Idaho five justices
Illinois seven Judges
Indiana Chief Justice of the State and not less than four nor more than eight associate justices
Iowa three judges… [The general assembly] may increase the number of judges of the supreme court; but such increase or diminution shall not be more than…one judge…at any one session
Kansas not less than seven justices
Kentucky Chief Justice of the Commonwealth and six associate Justices
Louisiana chief justice and six associate justices
Maine number not specified
Maryland seven judges
Massachusetts number not specified
Michigan seven justices
Minnesota one chief judge and not less than six nor more than eight associate judges
Mississippi nine judges
Missouri seven judges
Montana one chief justice and four justices, but the legislature may increase the number of justices from four to six
Nebraska seven judges, one of whom shall be the Chief Justice
Nevada Chief Justice and two or more associate justices, as may be provided by law.
New Hampshire number not specified
New Jersey Chief Justice and six Associate Justices
New Mexico at least five justices
New York chief judge and the six associate judges
North Carolina Chief Justice and six Associate Justices, but the General Assembly may increase the number of Associate Justices to not more than eight
North Dakota five justices
Ohio until otherwise provided by law, consist[s] of seven judges
Oklahoma (Supreme Court) nine Justices until the number shall be changed by statute
Oklahoma (Court of Criminal Appeals) number not specified
Oregon Four Justices… The number of Justices…may be increased, but shall never exceed seven
Pennsylvania seven justices
Rhode Island number not specified
South Carolina Chief Justice and four Associate Justices
South Dakota chief justice and four associate justices. Upon request by the Supreme Court the Legislature may increase the number of justices to seven
Tennessee five judges
Texas (Supreme Court) Chief Justice and eight Justices
Texas (Court of Criminal Appeals) eight Judges and one Presiding Judge
Utah at least five justices. The number of justices may be changed by statute…
Vermont Chief Justice of the State and four associate justices
Virginia seven justices… The General Assembly may, if three-fifths of the elected membership of each house so vote at two successive regular sessions, increase or decrease the number of justices of the Court, provided that the Court shall consist of no fewer than seven and no more than eleven justices.
Washington five judges… The legislature may increase the number of judges of the supreme court from time to time…
West Virginia five justices
Wisconsin 7 members who shall be known as justices of the supreme court
Wyoming not less than three nor more than five justices as may be determined by the legislature