As he signed legislation expanding the Arizona Supreme Court in 2016, Republican Gov. Doug Ducey promised Arizonans "swift justice."

Dismissing the critics who had accused him of packing the court — and the justices who had said they could handle their caseloads just fine — he argued that moving from a five- to seven-member bench would result in "more voices" and allow the court to "increase efficiency, hear more cases and issue more opinions."

But three years later, the court doesn't seem to operate in a markedly different way than it did before the expansion — despite costing the state an extra $1 million a year.

The number of case filings has increased, but the seven-member court has decided a smaller percentage of them than in many prior years.

There are new voices on the bench, but they all belong to conservative men.

And while the court published more written opinions in the first two years after the expansion, it's unclear whether that trend will hold.

“I don’t want to create the impression that I’m dismissing the idea that there has been some benefit of increasing the size,” Arizona Supreme Court Justice Scott Bales, who served as chief justice through last month, told The Arizona Republic.

“But we weren't unable to do the work that we had … when the court was only five justices."

Here's a closer look at whether the claims made to justify or protest the expansion have panned out.

1. A larger court would be more efficient

In his signing letter for House Bill 2537, the expansion legislation, Ducey acknowledged the charge that the move contradicted his administration's "goal of streamlining and simplifying state government."

"I disagree," he wrote. "Our goal is a state government that works for the people and that’s efficient and effective."

Asked recently whether the governor felt the larger court had met that goal, Ducey's office pointed to annual caseloads to demonstrate increased efficiency.

Spokesman Patrick Ptak cited a 13.4% uptick in case filings between fiscal years 2016 and 2017, saying the court was "keeping pace with the increased workload."

Case filings at the Supreme Court level did climb in the two fiscal years following the expansion. But completion rates — which show the proportion of cases the court moves through the process — were actually higher in four out of five of the preceding years, when the court had five justices.

William Raftery, a senior analyst for the National Center for State Courts, noted that while Arizona is not the only state to expand its "court of last resort" in recent years, it's more common to create intermediate appeals courts to handle increasing caseloads.

One possible reason: Half of states specify bench sizes in their constitutions, meaning that, unlike in Arizona, expansions could only happen with voter approval.

2. An expanded court would issue more opinions

Another benefit Ducey mentioned when expanding Arizona's court was an increase in written opinions.

State supreme courts make judgments on key issues from education and gerrymandering to voting and reproductive rights, and opinions can give voters a better understanding of justices’ decisions.

Written opinions are relatively rare, however. Typically, less than 5% of cases tackled by the Arizona Supreme Court each year result in an opinion. The court issues orders, which provide directives without outlining the justices' reasoning in detail, much more frequently.

“A single case may take weeks and months of opinion drafting and legal research, whereas another case is fairly straightforward,” said Raftery, the state-court expert.

Ducey wagered that having more justices to shoulder the burden would produce more written decisions. Arizona Chamber of Commerce President Glenn Hamer made a similar argument in 2016, saying more opinions in civil cases would mean more “certainty” for the business community.

Court data indicates Supreme Court justices issued about 33 opinions a year, on average, in the five years before the expansion. In the two years that followed, the seven-member bench issued 44 and 48 written opinions, respectively.

"We’re getting more decisions, and we’re also equipped for what will certainly be an increased caseload as the state continues to grow," Hamer said in June.

Bales, the Supreme Court justice, acknowledged the uptick but cautioned against immediately assuming the increase resulted from the expansion.

He pointed to preliminary data indicating the court issued 37 written opinions during the most recent fiscal year, meaning "our number of opinions is actually down."

"That (decrease) is not a factor of size. It's a consequence of the quality of the petitions for review that we get,” Bales said. “So whether, long term, there’s a trend for us to issue more opinions given a larger court, we just don’t know yet. The change is too recent.”

3. A bigger bench would allow for more diversity

Sen. J.D. Mesnard, R-Chandler, was less concerned with the court's workload when he introduced the expansion bill as a state representative in 2016 and more interested in adding diversity to the court — "more voices," as Ducey put it in his signing letter.

In an interview with The Republic last month, Mesnard reiterated that “for me, it was about … disseminating power among more people.”

“I would say that power is certainly less concentrated now, just mathematically speaking,” he said. “And in terms of diversity, I believe the governor appointed the first Hispanic to the court. I know I don’t always agree with (Ducey), but I think he’s made some really good picks.”

The governor did appoint the court’s first Latino justice, John Lopez, as part of the 2016 expansion. Ducey’s most recent appointment to the Supreme Court, former Appeals Court Judge James Beene, identifies as half-Latino.

But the number of female justices serving on the state’s high court — one — hasn't gone up. And the court still hasn't had a Native American, African American or Asian American justice.

In fact, Ducey selected Beene over another shortlisted candidate, Maria Elena Cruz, an Appeals Court judge with tribal-justice experience who could have been the court's first black and Latina justice. Cruz, a Democrat, had received the most votes from the largely conservative judicial-nominating commission based on her interview performance.

Ducey historically has said he doesn't focus on race, ethnicity or gender when considering candidates for judicial appointments. But many in the legal community say he should, assuming candidates meet the desired professional qualifications.

Judges' experiences inform their perspectives, those in the legal community say, and judges with similar backgrounds can share blind spots when making decisions.

"A public institution ought to reflect the public that it serves," Robert Grey, president of the Leadership Council on Legal Diversity and former head of the American Bar Association, told The Republic earlier this year. "That, to me, is how we get people to ... feel that an institution is going to be responsive to their needs."

In his application, Beene said his experience in the judicial system had "exposed me to the fact that problems based on race persist" and acknowledged "the insidious barriers still facing minorities in Arizona."

4. Ducey expanded the court so he could 'stack' it

As the governor pushed to add justices to the bench, then-state Sen. Katie Hobbs, D-Phoenix, contended his real motive was not efficiency or diversity but to “stack the Supreme Court” with conservative picks.

The court itself is a nonpartisan body, but governors tend to appoint from within their own parties. Ducey has said more than once that he aims to appoint "constitutional conservatives," who support small government and individual rights, and "textualists," who interpret laws based on their literal meaning.

Of the four justices Ducey has appointed to the court through a combination of judicial retirements and expansion, all have been conservative. The only Democrat on the court is Bales, who will retire July 31.

That will give Ducey a fifth appointment opportunity, more than any governor in Arizona history, and the chance to lock in his handpicked majority for years to come.

Lawmakers aren't the only ones to accuse Ducey of court-packing since 2016. Voters, particularly those frustrated with a lack of public-education funding, were incensed last fall when the court voted 5-2 to remove from the ballot an income-tax measure that would have provided more K-12 funding.

The majority opinion, joined by three justices Ducey had appointed, said the language crafted by the measure's campaign "did not accurately represent the increased tax burden on the affected classes of taxpayers."

Three months later, the Phoenix New Times published a text exchange between Ducey and Justice Clint Bolick that added fuel to the fire.

The messages, sent two days after U.S. Sen. John McCain died, showed Bolick —a Ducey appointee — urging the governor to give McCain's seat to Maricopa County Attorney Bill Montgomery. Bolick said Montgomery was "respected by everyone, supported by all parts of the GOP, yet unfailingly conservative."

Ducey did not select Montgomery for the Senate post, but the polarizing prosecutor is now in the running to replace Bales.

Montgomery could appear on the short list the judicial-nominating commission will submit to Ducey after public interviews July 26, despite failing to secure enough support this spring when he applied for the seat now occupied by Beene.

Since then, Ducey has replaced three of the commissioners who didn't vote for Montgomery.

“You can look at the numbers of cases and numbers of written opinions and numbers of criminal appeals all day long, and try to find ways to justify an expansion,” said Sen. Martín Quezada, a Glendale Democrat who has sharply criticized Ducey's appointments to both the court and the commission.

“But at the end of the day, I think the obvious motivation was to expand the court to make it more conservative. And that has clearly been accomplished.”

Reach the reporter at maria.polletta@arizonarepublic.com or 602-653-6807. Follow her on Twitter @mpolletta.

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