A Certain Mongrel Court: Congress's Past Power and Present Potential to Reinforce the Supreme Court

50 Pages Posted: 19 Apr 2006

See all articles by Ross E. Davies

Ross E. Davies

George Mason University - Antonin Scalia Law School, Faculty; The Green Bag


Congress has considerable power - or at least more power than experts on continuity of government have recognized - to pass laws designed to keep the Supreme Court in business in the event that several Justices are killed or incapacitated. The conventional view is that the constitutional mandate that [t]he judicial power of the United States shall be vested in one Supreme Court, precludes legislation creating some sort of back-up Court. This reading is rooted in the idea that the word one in "one Supreme Court must be read to mean one [indivisible]. As Chief Justice Morrison R. Waite expressed it, Certainly such a provision … carries with it the strongest implication that when this court acts, it must act as an entirety, and that its judgments shall be the judgments of the court sitting judicially as one court and not as several courts. Thus, says convention, an amendment to the Constitution is necessary before Congress can act to back up the Supreme Court.

But early Congresses did not treat the Constitution's one Supreme Court terms as an absolute bar to all subdivision of the structure of the Court. And the Court itself went along with the legislature. The most striking and long-lived example is the one-Justice rump Supreme Court that sat at a special August Term from 1802 to 1838 - a Court whose proceedings, records, and even an opinion by Chief Justice Roger Taney sitting as the one-Justice Court were treated as an integral part of the Supreme Court's business.

The rump Court of 1802 and the constitutional provision of one Supreme Court can be reconciled, and the result gives some clues to Congress's heretofore unappreciated latitude to fiddle with the structure of the Court - perhaps to improve continuity of its operations in the wake of calamity. Novel examples include a body of semi-permanently recused Justices and a body of qualifiedly pre-qualified Justices, all constitutionally cleared and ready to go in the event of a crisis, and yet precluded from meddling in the work of the normal one Supreme Court so long as it has a quorum to sit and serve. None of this means that Congress should exercise whatever power it may have in this area, but it does mean that it has a responsibility to decide whether to act or not. Congress should not base or excuse inaction on an erroneous presumption of complete, uninterrupted, and constitutionally-compelled legislative impotence.

Keywords: Congressional power, Supreme Court, One Supreme Court, terror, continuity

JEL Classification: H11, H56

Suggested Citation

Davies, Ross E., A Certain Mongrel Court: Congress's Past Power and Present Potential to Reinforce the Supreme Court. Minnesota Law Review, Vol. 90, No. 3, pp. 678-726, February 2006, George Mason Law & Economics Research Paper No. 06-13, Available at SSRN: https://ssrn.com/abstract=896187

Ross E. Davies (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

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