The Arizona Court of Appeals unanimously rejected ADF’s argument and upheld the ordinance. But the Phoenix law did not fare so well at the state Supreme Court, which Republican Gov. Doug Ducey has recently packed, adding two new seats and manipulating the appointment process to fill them with Republicans. The U.S. Supreme Court has declined to resolve the clash between free speech and nondiscrimination; in 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court declined to decide whether businesses have a First Amendment right to refuse to sell custom goods to same-sex couples. So, on Monday, the Arizona Supreme Court barreled ahead under its own state constitution, handing same-sex couples a resounding loss in their quest for equality.
If the Roberts Court refuses to allow the next Democratic majority to govern, an argument that will inevitably used against court-packing is that it’s been the settled norm established by the (highly contingent) defeat of FDR’s court-packing plan that has stopped Republicans from packing the Court. But there’s no reason to believe this. The most parsimonious explanation for Republicans not trying to pack the Supreme Court is that they either haven’t needed to or haven’t been in a position to:
There has only been a liberal median vote on the Supreme Court for two relatively short periods of the last century. In the late 30s, conservatives obviously had no opportunity to pack the courts. And during the era of what Scot Powe calls “history’s Warren Court” — the less-than-a-decade starting in 1962 after Arthur Goldberg replaced Felix Frankfurter, giving the Court five fairly reliable liberal votes — Democrats again had huge majorities and the White House. But what has happened is that at two critical junctures — 1968 and 2016 — conservatives played constitutional hardball to preserve a vacancy for what turned out to be a Republican president. The filibuster of Abe Fortas returned control of the Court to conservatives a less than a year into Nixon’s first term, and they’ve retained it ever since. And the Garland blockade shifted the median vote of the Court further right rather than giving the Supreme Court a liberal median vote for the first time in nearly 50 years.
Both McConnell’s behavior and the behavior of Republicans at the state level strongly suggests that if Republicans are in a position to pack the Courts and have the power do it, they will. If the next Democratic government think the balance of interests favors packing the court, they shouldn’t be stopped because preserving the norm will stop Republicans from doing it later.