A thread about court-packing (and unpacking) of state supreme courts, based upon an essay I wrote for a @WMLawReview symposium (found here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3595477).

There is something of a push-pull relationship between the positive and the normative when it comes to the court-packing debate. If you can show that the other side has engaged in court-packing (or unpacking), you are on more solid ground to justify your own attempt. (2/x)

This is why there is a fight over whether we can say that Judge Garland's seat was "stolen" - whether the Republicans effectively "unpacked" the Supreme Court, by bringing it down to 8 seats in 2016. (3/x)

Missing in the debate over the positive question - whether court packing recently occurred - is that it has *unquestionably* happened in the past several years in state courts across the country. (4/x)

Specifically, in the last decade alone, there have been attempts by legislatures in at least 10 states to alter the size of their courts of last resort, with two of those attempts "succeeding." (5/x)

This happened in AZ in 2016, despite then-Chief Justice Scott Bales stating that "additional justices are not required by the court's caseload" and "an expansion of the court...is not warranted when other court-related need are underfunded." (6/x) https://tucson.com/news/local/govt-and-politics/ducey-signs-law-adding-2-justices-to-arizona-supreme-court/article_19f500f3-4db7-5d64-b6c4-2b053df92a00.html

And it happened in GA in 2016, over cries of court packing. (7/x) https://www.ajc.com/news/state--regional-govt--politics/expansion-georgia-supreme-court-wins-final-approval/skmjVHCCo80HW4hXZKL6rM/

Nearly all of the attempts to alter the courts that I examined came from Republican-controlled state legislatures. (8/x)

My findings are based on searches in the invaluable database of state legislation on state courts run by the National Center for State Courts found here: http://gaveltogavel.us/database/  @StateCourts (9/x)

And as I note, my search focused on expanding / contracting state supreme courts; I do not include intermediate appellate courts. As such, these findings are *underinclusive.* (E.g., I do not discuss NC's attempt to "unpack" its court of appeals - https://account.newsobserver.com/paywall/registration?resume=144024154)(10/x)

To be sure, state courts are different from federal courts, but we should not overlook the many attempts to pack / unpack our state supreme courts while we have the larger court-packing debate. (11/x)

Finally, I could not have done my research without the incredible work of Bill Raftery at NCSC @StateCourts , and Alicia Bannon ( @alicia_bannon) at the Brennan Center. (12/12 - fin)