The Other Supreme Court
Ross E. Davies
Antonin Scalia Law School, George Mason University; The Green Bag
July 27, 2006
Journal of Supreme Court History, Vol. 31, No. 3, pp. 221-234, Nov 2006
George Mason Law & Economics Research Paper No. 06-34
Despite the Constitution's one supreme Court language, the Supreme Court came in two flavors for 37 years. From 1802 to 1838, the members of the Court gathered in Washington every winter for a conventional en banc February Term, 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 long-standing 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 of the Constitution thought that was what they said when they chose those words, as the records of the constitutional convention of 1787 show. Gouverneur Morris, an influential figure in the drafting of the Constitution, recalled this point on the floor of the Senate in 1802: "The constitution 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." A couple of generations later, Chief Justice Morrison R. Waite was even more emphatic about the indivisibility of the one Supreme Court. Addressing a banquet in Philadelphia during a celebration of the centennial of the Constitution, while Congress in Washington debated proposals to enlarge and panelize the Court, he said, "I beg you to note this language: 'ONE SUPREME COURT and such inferior 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 cannot abolish, neither can it create another. Upon this the Constitution has no doubtful meaning. There must be one, and but one." Over the years, members of the Court from Justice Stephen J. Field to Chief Justice Charles Evans Hughes to retired Chief Justice Earl Warren made similar arguments. 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 of Article III has not involved and could not involve a reorganization of the Court under which some Justice or Justices conducted the Court's business while others qualified to serve were compelled to watch from the sidelines.
But this historical belief in perfect congressional perpetuation of the one [indivisible] supreme Court is mistaken. Early Congresses did not always treat the constitutional commitment to one supreme Court as an absolute bar to all subdivision of the structure and business of the Court. And the Supreme Court itself went along with the legislature in the 1802 creation of the one-Justice rump Supreme Court that sat every year on the first Monday of August until 1839.
Number of Pages in PDF File: 15
Keywords: Alien, Bushrod Washington, demi, Elias B. Caldwell, Federalists, Franklin Delano Roosevelt, James Bayard, John Adams, judiciary, Lucas Elmendorf, Marshall, midnight judges, mongrel, Paterson, power, Repeal Act March 8 1802, Republicans, Samuel Chase, sedition, Thomas Jefferson, William Cushing
JEL Classification: H11, H56
Date posted: August 7, 2006 ; Last revised: August 27, 2012
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