Enlarging Georgia’s Supreme Court bench: A GOP insurance policy

Gov. Nathan Deal wants to take out an insurance policy on Republican rule in Georgia.

This week, the governor confirmed earlier reports that he would like to see the Georgia Supreme Court increased from a bench of seven justices to nine.

Officially, his motivation points in the direction of population pressure. “As our state continues to grow, the demands of the court also grow. And we have to keep up with that,” Deal told a reporter this week.

But the chairmen of the House and Senate Judiciary committees say they thought the Legislature dealt with the caseload issue this year when they increased the number of Court of Appeals judgeships from 12 to 15.

“I’m trying to understand where the need is,” said state Rep. Wendell Willard, R-Sandy Springs, chairman of the House Judiciary Committee. Willard said he was willing to listen to the arguments. But color him “skeptical.”

His Senate counterpart, state Sen. Josh McKoon, R-Columbus, is slightly less jaded. “I’m certainly not against it, but I want to see some numbers to see what the justification is,” McKoon said.

Whether out of fiscal responsibility or political jealousy, Georgia legislatures have a history of stinginess when it comes to Supreme Court justices. For the first five decades of the state’s history, we did without. A three-justice high court was created only in 1845.

In 1896, three more justices were added, followed by a seventh in 1945. In 1983, a new state constitution raised the allowable number of justices to nine. But in the three decades since, no governor has yet taken advantage of this permission.

Rather like rapping out “shave and a haircut” and forever neglecting the “two bits.”

So if workload isn’t the issue, as some in the legal world claim, what is? Two precedents, one historic and one fictional, were on the tongue-tips of many Georgia lawyers this week.

First, there is President Franklin Roosevelt’s court-packing scheme of the 1930s, intended to circumvent a U.S. Supreme Court that was hostile to the president’s New Deal. FDR was denied.

But a modern Georgia parallel would require some stalled program embraced by the governor. Which doesn’t exist. Shortly after Deal took office, the Georgia Supreme Court ruled that the state’s charter school commission was unconstitutional. But that was a Sonny Perdue program, and a 2012 constitutional referendum fixed things.

Then we have John Grisham’s 1990s thriller, “The Pelican Brief,” a conspiracy theorist’s delight built around an attempt to rig the outcome of an environmental lawsuit through the murder of two Supreme Court judges.

That presumes a specific case lodged in one of Georgia’s lower courts that might be affected by the addition of two more Supreme Court judges. But lawyers we spoke with said that close decisions by Georgia’s justices are relatively rare.

For instance, an important 2010 decision overturning a $350,000 cap in medical malpractice decisions was unanimous. (However, another provision of the same 2005 law, which makes it almost impossible for patients to recover damages in emergency room cases, was upheld on a 4-3 vote.)

The key to Deal’s decision to seek a bigger bench for the state Supreme Court lies in the fact that justices, while formally elected by nonpartisan vote, might just as well be lifetime appointments in Georgia.

Efforts to turn our Supreme Court elections into ideological contests of the Alabama sort pretty much died in 2006, when incumbent Justice Carol Hunstein easily beat a challenger backed by a well-heeled business group looking to protect that aforementioned tort-reform bill passed in 2005.

She’s still there.

However, Georgia justices (and judges on the Court of Appeals) are required to retire at age 75 or forfeit their pension. That has the effect of forcing many a robed character to resign midterm. Which has the happy result of giving the governor a much-prized appointment.

So far, our current governor has made only one appointment to the top bench: Keith Blackwell, in 2012. But Chief Justice Hugh Thompson and Presiding Justice Harris Hines both plan to retire while Deal is in office. That will make three.

Should the Legislature create two more seats on the Supreme Court bench, Deal would leave office having named a solid majority of a nine-justice bench. Young appointees could have careers that stretch three decades and more.

Consider: Republicans have been in charge of state government since 2004. But on today’s (formally nonpartisan) Georgia Supreme Court, you have four Democratic appointees and three Republican ones. Justices are kites with very long tails.

In the next weeks and months, you may hear people say that, by adding appointees to the Supreme Court bench, the governor is merely protecting the criminal justice reforms that are likely to be his chief legacy. But it is larger than that.

Over the next decade, maybe two, Georgia’s changing demographics will push the political pendulum back to the Democratic camp. Republicans, like their Democratic forebears, will erect a number of impediments to slow things down. Redistricting will be one tool. Tougher voting requirements have already emerged as another.

When those hard times come, likely long after Deal has left the scene, a friendly high court could be just the insurance policy that Republicans will need.

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About the Author

Jim Galloway
Jim Galloway
Jim Galloway is a three-decade veteran of The Atlanta Journal-Constitution who writes the Political Insider blog and column.