The Other Supreme Court

Abstract

The Other Supreme Court ROSS E. DAVIES* “The judicial Power of the United States, shall be vested in one supreme Court.” —U.S. Const, art. Ill, § 1 (emphasis added) Despite the Constitution’s “one supreme Court” language, the Supreme Court came in two flavors for thirty-seven years. From 1802 to 1838, the members ofthe Court gathered in Washington every winter for a conventional en banc February Term,1 but then in the summer a single Justice would return to the nation’s capital to sit alone as a rump Supreme Court for a short August Term. This odd one-Justice rump Court does not fit the longstanding and widely accepted understanding that the words “one supreme Court” mean “one [indivisible] supreme Court”—a single en banc body consisting of all of its available and qualified members to conduct its business. The Framers ofthe Con­ stitution thought that was what they said when they chose those words, as the records of the constitutional convention of 1787 show.2 Gouverneur Morris, an influential figure in the drafting ofthe Constitution, recalled this point on the floor ofthe Senate in 1802: “The consti­ tution says, the judicial power shall be vested in one supreme court, and in inferior courts. The legislature can therefore only organize one supreme court, but they may establish as many inferior courts as they shall think proper.”3 A couple ofgenerations later, ChiefJustice Mor­ rison R. Waite was even more emphatic about the indivisibility ofthe “one” Supreme Court. Addressing a banquet in Philadelphia during a celebration of the centennial of the Consti­ tution, while Congress in Washington debated proposals to enlarge and panelize the Court,4 he said, I beg you to note this language: “One Supreme Court and such in­ ferior courts as Congress may, from time to time, ordain and establish.” Not a Supreme Court or Supreme Courts, but “one,” and only one. This one Supreme Court Congress can­ not abolish, neither can it create an­ other. Upon this the Constitution has no doubtful meaning. There must be one, and but one. Certainly such a provision, in such pointed language, 222 JOURNAL OF SUPREME COURT HISTORY Pennsylvania delegate Gouverneur Morris had a great deal of influence on the ultimate formulation of the language of the Constitution. He disagreed with pro­ posed language prohibiting increases in the salaries of Supreme Court Justices on the ground that the other solution to an increasing workload—adding more members—would not reduce the burdens of in­ dividual Justices since cases could not be divided among them. carries with it the strongest implica­ tion that when this court acts, it must act as an entirety, and that its judg­ ments shall be the judgments of the court sitting judicially as one court and not as several courts.5 In the same vein, Waite’s colleague Jus­ tice Stephen J. Field reported that theory and practice were in accord on the Court: “No case in the Supreme Court is ever referred to any one Justice, or to several ofthe Justices, to de­ cide and report to the others.”6 And ChiefJus­ tice Charles Evans Hughes wrote to Congress in 1937, at the height of the controversy over President Franklin Roosevelt’s Court-packing plan: “I may also call attention to the provisions ofarticle III, section 1, ofthe Constitution that thejudicial power ofthe United States shall be vested ‘in one Supreme Court’ .... The Con­ stitution does not appear to authorize two or more Supreme Courts or two or more parts of a supreme court functioning in effect as sepa­ rate courts.”7 Finally, retired ChiefJustice Earl Warren attacked a proposal for the creation of a National Court of Appeals in part on indi­ visibility grounds, rhetorically asking, “When the jurisdiction of the Supreme Court is exer­ cised by two courts, have we not created two Supreme Courts in contravention of this con­ stitutional limitation?”8 Nothing has changed, then, since the Constitution was written and ratified. It is and always has been understood that Congress’s implementation of the “one supreme Court” language ofArticle III has not involved and could not involve a reorganiza­ tion of the Court under which some Justice or Justices...