Why Rep. Andy Biggs opposes expanded Supreme Court

Rep. Andy Biggs says his latest effort to keep Democrats from adding new justices and packing the U.S. Supreme Court isn't the same as a decade ago when Republicans expanded Arizona's Supreme Court — with his help.

Biggs this year introduced a resolution in Congress calling for a constitutional amendment to cap the number of justices on the nation's highest court at nine.

"This is not a hidden secret in Congress," Biggs said in an interview. "I mean, my colleagues on the other side of the aisle say, 'We don't want these MAGA judges on the U.S. Supreme Court. We need to pack the Supreme Court for philosophical and ideological reasons.'"

But in 2016, he supported then-Gov. Doug Ducey's controversial plan to grow the Arizona Supreme Court from five to its current seven justices. The plan was fiercely opposed by Arizona Democrats, who dismissed it as Ducey's attempt to build a conservative bench. Notably, the state's chief justice at the time also opposed expansion, saying there was no need for more justices and the state's resources would be better dedicated to other parts of the court system.

One difference between then and now is which political party would add more jurists to the bench if there were additional seats. Some Democrats have spoken about expanding the nation's top court, while Republicans drove the effort in Arizona a decade ago.

Biggs argued the real difference was the motivation behind expansion.

He said his support of Ducey's plan was not driven by a political motivation to appoint favorable jurists, even if Ducey did pick Republicans Andrew Gould and John Lopez IV for the new seats on the bench. Democratic lawmakers repeatedly blasted the 2016 plan as a move by Republicans to stack the Arizona Supreme Court.

"I think there was that argument made, but I don't believe that was necessarily the reality of the situation," Biggs said.

Among the plan's Democratic critics was the party's Senate leader at the time, Katie Hobbs. Hobbs said then that court caseloads were not a problem and "the only reason to do it is so the governor can stack the Supreme Court with his picks." Then-Chief Justice Scott Bales had asked Ducey to veto the court expansion bill and instead put the estimated $1 million cost toward other court priorities.

As to Biggs' latest position on court expansion, Hobbs said on June 29, "It seems a little hypocritical."

Biggs dismissed Hobbs' view.

"She's entitled to her opinion because everybody's entitled to be wrong," he said.

Hobbs was elected governor in 2022 and is seeking a second term this year, with Biggs as the Republican frontrunner to challenge her. Republican voters will decide who gets their party's nomination in the July 21 primary election.

Biggs insisted that his concern in both situations was resources, calling the U.S. Supreme Court "efficient" thanks to "massive resources" that Arizona's court a decade ago did not share.

"I'm going to make this as simple as I can because I've said it three times," Biggs said. "Arizona needed to have resources there to deal with caseload, the caseload of our burgeoning population. We matched by going to seven, places like Colorado, Washington, Wisconsin, those states that are roughly the same population size as Arizona."

Expanding Arizona's court was requested by businesses, which bring many cases, and was intended to bring Arizona in line with those other states, Biggs said. That's similar to the argument Ducey, a Republican, made.

Biggs, who was the Senate president at the time and controlled which bills got votes and which died, spoke in favor of the expansion during a floor debate. He said it was appropriate given the state's growing population "to get ahead of the curve."

Yet an analysis three years later by The Arizona Republic found that many of Ducey's goals in expanding the court, such as more case output, had not been realized. And current and former justices said in 2020 that the two new seats on the bench actually made it less efficient.

Congress determines the number of justices on the U.S. Supreme Court, and the panel has shrunk and grown since the first debate over the court's size in 1801. The U.S. Supreme Court has held steady at nine seats since 1869.

Biggs and other conservative members of Congress have pushed back against liberal Democrats who have in recent years favored expanding the U.S. Supreme Court as a way to dilute its current 6-3 conservative majority.

Biggs has also proposed a plan that has long been favored by conservatives to split up federal court circuits, targeting the 9th Circuit, which includes Arizona and has a reputation as the nation's most liberal appeals court. He said that is what needs to be fixed at the federal level.

His resolution, calling for a constitutional amendment to keep the U.S. Supreme Court from growing, has long-shot odds. It would need to be passed by a two-thirds vote in Congress and ratified by 38 states, something Biggs has acknowledged is unlikely.