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The difficulties in changing the number of judges in a court

April 6, 2022

By Bill Raftery

The number of judges in smaller local courts (e.g., municipal, justice of the peace) may be set by the local government. However, the state legislature is involved in most general jurisdiction trial appellate courts. Generally, the number of judges allowed in a particular court is set by the state’s legislature. In a variety of states, the legislature’s ability to change those numbers can be more difficult than in others.

Courts of Last Resort: Thirty-one states have placed limits on the ability of their legislature to alter the number of justices on their courts of last resort. This is, in part, a result of concerns over court-packing.

  • Twenty-five states place the exact number of justices in the state constitution, thus requiring a constitutional amendment to change the number.
  • Three others (Alaska, Colorado, and South Dakota) require that the state’s supreme court grant permission to the legislature to change the composition of the court. In addition, Colorado’s constitution requires a two-thirds majority of the legislature.
  • Iowa limits the legislature to adding no more than one justice per session.
  • Ohio’s constitution requires a two-thirds majority.
  • Virginia requires a three-fifths majority across two legislative sessions to change the composition of the supreme court.

Intermediate Appellate Courts: These courts are often created by statute. Therefore, they are less likely to have restrictions placed on the ability of the legislature to change their numbers.

  • Six states (California, Georgia, Louisiana, Pennsylvania, Missouri, and South Carolina) set a constitutional minimum number of judges for the court or districts of the court.
  • Florida’s constitution sets two different approval levels to change the District Courts of Appeal. If the supreme court certifies the need for more or fewer judges, the legislature can approve the supreme court’s recommendation by a simple majority. If, however, it adds or subtracts more than the supreme court certifies, the legislature must approve the change with a two-thirds vote.
  • Kentucky’s Court of Appeals “shall consist initially of fourteen judges, an equal number to be selected from each Supreme Court district. The number of judges thereafter shall be determined from time to time by the General Assembly upon certification of necessity by the Supreme Court.”
  • Louisiana’s legislature can only change the number of judges of their Court of Appeals with a two-thirds majority.
  • New York’s constitution sets the number of justices in the Appellate Divisions, thus requiring a constitutional amendment to change them.

General Jurisdiction Trial Courts:  Twenty-one states provide a minimum number of judges of these courts per district or county, but otherwise leave it to a simple majority of the legislature to set numbers and locations. Idaho’s constitution, for example, provides that “The state shall be divided into five judicial districts, for each of which a judge shall be chosen by the qualified electors thereof…but the legislature may reduce or increase the number of districts, district judges...”

Several states do have super-majority or other hurdles for legislatures to overcome.

  • Three states (Colorado, Louisiana, and Ohio) require two-thirds majorities to change the number of judgeships.
  • Florida’s provision previously mentioned applies to general jurisdiction courts as well:  a simple majority if approving changes to the number of judges as certified by the supreme court, otherwise two-thirds.

How hard (or easy) is it for your state to change the number of judgeships? Share your experience with us at Knowledge@ncsc.org or call 800-616-6164. Follow NCSC on Facebook, Twitter, Instagram, LinkedIn, or Vimeo.