Whether called court packing or court reform, the idea of “adjusting” the membership or structure of a state court of last resort in order to register legislative displeasure is nothing particularly new. Over the last 5 years, at least 5 such efforts have been made to either remove justices from the existing court or add enough justices to alter certain prior decisions (a review of such efforts can be found here). 2011 however is unique in the extent to which such efforts moved from hypothetical to on the ground realities and, as I noted last week, 2012 already has at least 1 bill filed.
Florida’s HJR 7111 is the most obvious on this score. The plan, as introduced by the Republican House Speaker, would have split the existing 7 member Florida Supreme Court into two panels of 5, one for civil and the other criminal. All Democratically-appointed sitting justices would be transferred to the criminal panel and the Republican-appointed justices (plus new appointees by the Republican governor) to the civil panel. While the proposal was approved on party line votes in the House, Senate Republicans removed any reference to splitting the supreme court before sending it back to the House. A last ditch effort by the Speaker for a “study” of splitting the supreme court splitting idea was line-item vetoed by the state’s GOP governor.
Montana’s HB 245 took a different tack; rather than expanding the state’s supreme court to achieve certain decisions this proposal would have shrunk the court from 7 to 5 (under Montana’s constitition the legislature may make such a reduction with a simple statute; no constitutional amendment required as in Florida). The sponsor was abundantly clear of his reasoning for the reduction:
All of us want tort reform, well maybe not all of us. I surely want it and a lot of folks I talk to want it. So how do we get tort reform? I would suggest that if we took the Supreme Court from 7 down to 5, they have a higher workload, guess who becomes our ally in tort reform? The Supreme Court.
The effort died in committee, with all 6 House Judiciary Committee Democrats voting against and the committee Republicans splitting 8-6 in favor.