Top GOP lawmakers looking to potentially expand Utah's Supreme Court
House Majority Leader Jefferson Moss, R-Saratoga Springs, said higher caseloads and court delays are behind the push to study expanding the court, but the move comes as GOP lawmakers are still smarting after the state's high court rebuked them last summer for altering a 2018 ballot initiative and allowed their abortion ban to remain on hold pending a legal challenge.
And it's not the only way legislators are seeking to rein in the power of the courts this legislative session.
Moss announced his intent to file legislation on the subject on the House floor Wednesday. The specifics of the proposal remain unclear, and a requested bill in Moss's name titled "Judicial Officer Modifications" has yet to be made public.
"Over the past decade, we have seen growing caseloads, delays and evolving legal complexities in Utah's highest court," Moss told KSL.com through a spokeswoman. "The Legislature has the ability to adjust the court's size in response to these growing demands. As such, I've opened a bill file to explore the potential of adjusting the number of justices on the Utah Supreme Court."
Utah's Supreme Court dates back to before statehood, when the Deseret Constitution established a three-member territorial court that convened in 1850, per the Utah Division of Archives and Records Service. The Utah Supreme Court was established in 1896 with three justices, and later expanded to include the five justices — one chief justice and four associate justices — which is still in place today.
The state Constitution requires that the court "shall consist of at least five justices," but gives lawmakers the power to change the number of justices through statute, "but no change shall have the effect of removing a justice from office."
Moss hasn't expressed support for expanding the court to a specific number of justices. The U.S. Supreme Court currently has nine members, while many states have between five and nine.
Some Democrats expressed an openness to expanding the federal Supreme Court during President Donald Trump's first term and following its ruling overturning Roe v. Wade, but that openness met with accusations of trying to "pack the court" by many conservatives — including Utah Sen. Mike Lee, who wrote a book in defense of the current number: "Saving Nine: The Fight Against the Left's Audacious Plan to Pack the Supreme Court and Destroy American Liberty."
"If members of both parties do not step up and vigorously oppose this idea, they might just get away with it this time," Lee wrote in a 2023 Deseret News op-ed. "I am not exaggerating when I say that the future of our Constitution is at stake."
Utah House Speaker Mike Schultz, R-Hooper, said it's time to begin discussing adding justices as Utah transitions to a "medium-sized" state in a meeting with reporters Thursday.
"I don't know why the courts would have an issue with increasing the size," he said. "I mean, you look at the workload and the amount of the complexity of the cases that are in front of them today, and I think more eyes on what they're looking at to help sort through some of these issues I think is a good idea."
But despite Utah's growing population, some are skeptical that adding justices will improve the efficiency with which the court hears and decides cases. In fact, it could have the opposite effect, according to Michael Zimmerman, a longtime litigator who served on the Utah Supreme Court from 1984 to 2000 and was its chief justice for four of those years. Zimmerman's firm has represented plaintiffs in several cases against the Legislature, but he has not been involved in those cases.
"I think that the court is not overburdened at the present time in terms of cases," he told KSL.com. "Sometimes, cases take a long time. There are always cases that get hung up within the court, and it takes time to get them ironed out among the justices."
"Adding more judges means that coming to a conclusion that can be supported by a majority will take you longer," he added. "So, I don't see any functional reason to think that expanding the court would do anything positive. ... I understand the Legislature may be frustrated with the time it takes cases to go up and down within the courts, but, you know, everybody gets frustrated with the time litigation takes."
In light of several recent rulings by the Utah courts against lawmakers — pausing the state's near-total abortion ban, temporarily blocking a ban on transgender athletes in high school sports, and saying the Legislature overreached by altering a 2018 ballot initiative on redistricting — the Legislature has considered several proposals that have been seen as efforts to get around rulings it doesn't like.
"In terms of justifying expanding the court because of 'evolving (complexities)' of the law, all I can think that means is that the legislator thinks that somehow the current members of the court — I just have to frankly say — (it) must mean that they don't agree with what the legislator would like them to be deciding," Zimmerman said. "The people on the court right now are very smart, very well educated. They were selected in an impartial process. Every one of them was picked by a Republican governor, and they're very, very capable people."
Asked about the bill shortly after it was announced Wednesday, Senate President Stuart Adams, R-Layton, said he had heard a "rumor" of a proposal but declined to weigh in either way.
"It's an interesting bill file; we'll see if it has legs," he told reporters. "That's probably all I'm going to say."
While the issue of Utah's Supreme Court makeup isn't commonly discussed in state politics, Zimmerman made the case that the current system is an important check against government overreach and is designed to be a deliberate and sometimes slow process.
'People can be very impatient with the way the system's set up,' he said. 'An autocracy is very efficient. One person decides everything. It's also tremendously perilous for anybody that doesn't agree with the autocrat. ... In the United States, we've opted for fairness and process as a primary value.'
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