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2002

How Many Judges Does It Take to Make a Supreme Court?

John V. Orth

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Orth, John V., "How Many Judges Does It Take to Make a Supreme Court?" (2002). Constitutional
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 HOW MANY JUDGES DOES ITT AKE TO
MAKE A SUPREME COURT?

John V. Orth*

How many judges does it take to make a supreme court?

Three? Five? Seven? Nine? Or more? If state as well as federal
courts are considered, all answers have been correct at one time
or another, in one court or another. State constitutions some-
times set the number of judges; sometimes, like the U.S. Consti-
tution, they leave it to the legislature to decide. 1 The size of a
court is usually determined by more or less objective considera-
tions, such as the cost of the judicial establishment, the size of
the caseload, or the existence of other judicial duties such as cir-
cuit-riding, but occasionally in notorious cases the number of
judges is increased or decreased to serve partisan purposes. "We
are under a Constitution," Charles Evans Hughes once re-
marked off-the-cuff and to his everlasting regret, "but the Con-
stitution is what the judges say it is. "2 As the politicians are well

* William Rand Kenan, Jr. Professor of Law, University of North Carolina at

Chapel Hill. A.B. 1%9, Oberlin College; J.D. 1974, M.A. 1975, Ph.D. 1977, Harvard Uni-
versity.
I. U.S. Const. art. III, § 1 (not determining number of supreme court justices);
N.J. Const. art. VI,§ II ("The Supreme Court shall consist of a Chief Justice and six As-
sociate Justices."); N.C. Const. art. IV, § 6 ("The Supreme Court shall consist of a Chief
Justice and six Associate Justices, but the General Assembly may increase the number of
Associate Justices to not more than eight.").
When first created by statute in 1818, the North Carolina Supreme Court consisted
of three judges. After the Civil War, the state's Reconstruction Constitution, the first to
give the court constitutional status, increased the total to five, but post-Reconstruction
amendments in 1876 reduced it again to three. Since then, the size of the court has grown
steadily: to five in 1888 by constitutional amendment; to seven in 1937 by statute author-
ized by constitutional amendment in 1935. Although the General Assembly is empow-
ered by the 1971 Constitution to increase the size to nine, the court remains today at
seven. See John V. Orth, The Nonh Carolina State Constitution: A Reference Guide 106
(Greenwood Press, 1993).
2. David J. Danelski and Joseph S. Tulchin, eds., The Autobiographical Notes of
Charles Evans Hughes 143 (Harvard U. Press, 1973). Hughes, who was governor of New
York at the time, was speaking extemporaneously in defense of his proposal to create an
administrative agency to regulate public utilities. In keeping with developing notions of
administrative law, he sought to limit judicial review to questions of the constitutionality
of the empowering statute and implementing orders; opponents of the proposal sought to
make the commission's findings of fact reviewable as well. Hughes always insisted that

681
682 CONSTITUTIONAL COMMENTARY [Vol. 19:681

aware, sometimes it matters not just who the judges are but how
many there are.
Ever since the Judiciary Act of 18693 the authorized
strength of the United States Supreme Court has remained at
nine. So long accustomed to that number have we become that it
seems just about perfect-not too large, not too small. State su-
preme courts tend not to exceed the federal number. With larger
caseloads but smaller jurisdictional areas, they typically function
today with nine, seven, or five judges.
Although the size of the U.S. Supreme Court has remained
constant since 1869, the status quo was memorably challenged in
1937, when President Franklin Roosevelt proposed his Court Re-
form Bill, better known as the "court-packing plan," designed to
secure a majority of justices to uphold the government's economic
program. 4 Authorizing the president to appoint one new justice
for every sitting justice over the age of seventy, the bill provided
for a maximum complement of as many as fifteen judges.5 Never
adopted, the proposal foundered on a public consensus that it
would have too obviously politicized the judicial branch. In any
event, a majority of the sitting justices rather suddenly coalesced
in support of the president's program, the so-called "switch in
time that saved nine." 6

his much-quoted comment was misunderstood:

This remark has been used, regardless of its context, as if permitting the infer-
ence that I was picturing constitutional interpretation by the courts as a matter
of judicial caprice. This was farthest from my thought. I was not talking flip-
pantly or in disrespect of the courts, but on the contrary with the most profound
respect. I was speaking of the essential function of the courts under our system
in interpreting and applying constitutional safeguards, and I was emphasizing
the importance of maintaining the courts in the highest public esteem as our fi-
nal judicial arbiters and the inadvisability of needlessly exposing them to criti-
cism and disrespect by throwing upon them the burden of dealing with purely
administrative questions.
Id. at 143-44.
3. Act of April10, 1869, ch. 22, 16 Stat. 44.
4. See William E. Leuchtenburg, The Origins of Franklin D. Roosevelt's "Court-
packing" Plan in William E. Leuchtenburg, The Supreme Court Reborn: The Constitu-
rional Revolution in the Age of Roosevelt 82 (Oxford U. Press, 1995); id. at 132.
5. At the time, six of the nine sitting justices were over seventy years of age: Louis
Brandeis, Pierce Butler, Charles Evans Hughes, James McReynolds, George Sutherland,
and Willis Van Devanter.
6. The provenance of this phrase is discussed in Michael Ariens, A Thrice-Told
Tale, or Felix the Cat, 107 Harv. L. Rev. 620, 623 n. 11 (1994). Whether the "switch" was
in response to the court-packing plan has been the subject of debate. Compare Ariens, id.,
with Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum,
or Felix the Non-Forger, 142 U. Pa. L. Rev. 1985 (1994). See also Barry Cushman, Rethink-
ing the New Deal Court: The Structure of a Constitutional Revolution (Oxford U. Press,
1998), reviewed by William Lassiter, Jusrice Roberts and the Constitutional Revolution of
1937- Was There a "Switch in Time"? 78 Tex. L. Rev. 1347 (2000).
2002] HOW MANY JUDGES DOES IT TAKE 683

For the first century of American history the number of

U.S. Supreme Court justices was closely tied to the number of
federal judicial circuits. The connection was forged by the origi-
nal judiciary act in 1789, which created the federal judicial sys-
tem of district and circuit courts, topped by a supreme court. Al-
though the act provided for the appointment of district judges
and supreme court justices, no circuit judgeships were author-
ized. Instead, the circuit courts were to be staffed by judges from
the other two courts. At first, the nation was divided into three
judicial circuits, each to be visited twice yearly by two supreme
court justices, who in combination with the resident district
judge would form the circuit court. 7 The number of circuits in-
evitably grew with the nation, but political considerations often
played a role in determining when to recognize new circuits and
which states to include. The assignment of the states in the cir-
cuits was important because of the tradition of placing one rep-
resentative from each circuit on the court.
Circuit-riding quickly became an object of complaint with
the justices. Particularly onerous in the early days, it was never
easy for the elderly men typically appointed to the court. Justice
James Iredell of North Carolina, who drew the Southern circuit
in the 1790s, was described as leading "the life of a ~ost boy,"
traveling as much as 1,900 miles in a single circuit. Even as
transportation improved to make travel less difficult, the nation
expanded in size to make the distances to be covered ever
greater. In 1793 it was provided that only one supreme court jus-
tice was required to visit each circuit. 9 In 1801, as we will see, cir-
cuit-riding was briefly eliminated but was quickly restored the
next year, under circumstances that made further changes diffi-
cult. Although the circuits were periodically reconstituted over
the years, the number of justices seemed for long inescapably
tied to the number of circuits. At last, the process of breaking
the link began when circuit judgeships were finally authorized by
the Judiciary Act of 1869, the same act that stabilized the court's
membership at nine. 10 Nominal circuit-riding duties for the jus-
tices continued, however, until the creation in 1891 of the circuit

7. Act of Sept. 24, 1789, ch. 20, 1 Stat. 73, § 4. See Wythe Holt, "To Establish Jus-
tice": Politics, the Judiciary Act of 1789, and the Invention of the Federal Courts, 1989
Duke L.J. 1421; Wilfred J. Ritz, Rewriting the History of the Judiciary Act of 1789: Expos-
ing Myths, Challenging Premises, and Using New Evidence (U. of Oklahoma Press, 1990).
8. Willis Whichard, Justice James /redell173 (Carolina Academic Press, 2000).
9. Id. at 183.
I 0. Act of April 10, 1869, ch. 22, 16 Stat. 44. One supreme court justice was still ex-
pected to visit each circuit once in two years.
684 CONSTITUTIONAL COMMENTARY [Vol. 19:681

courts of appeals (since 1948 called simply the courts of ap-

peals).ll Today, the remaining circuit duties of the justices are
merely vestigial. Applications for stays, for bail, or for extensions
of time are addressed to the circuit justice for the circuit in which
the case arises. 12 Now that there are fourteen circuits, some jus-
tices must necessarily be assigned to more than one circuit. 13
Nine as the desip,nated number of circuits and justices was
first attained in 1837, 4 but the upheaval of the Civil War caused
a couple of temporary distortions. In 1863 Congress increased the
size of the court from nine to ten, in order to provide a circuit jus-
tice for an additional circuit created on the admission of Califor-
nia15 and to permit President Abraham Lincoln to name the De-
mocratic but Unionist Stephen J. Field to the court. In 1866 an ill-
conceived and short-lived judiciary act reduced the number of jus-
tices from ten to seven after three vacancies to deny President
Andrew Johnson any judicial appointments. 16
The court's membership had first reached seven in 1807. 17
Before that, throughout the first two decades of the court's exis-
tence, the authorized number of justices had generally held at six.
The Judiciary Act of 1789 had set the pattern: "[T]he supreme
court of the United States shall consist of a chief justice and five
associate justices .... " 18 In a notorious maneuver in 1801 the
Federalist Party, having lost the election of 1800, used its lame-

II. The Judiciary Act of 1891, Act of March 3, 1891, ch. 517, 26 Stat. 826 (Evarts
Act). The circuit courts as such (as opposed to the circuit courts of appeals) continued in
existence until1911 when their jurisdiction was transferred to the district courts.
12. Supreme Court Rule 22.
13. For the current assignments, see the front matter in the United States Reports.
14. Although proposals to increase the number of circuits and justices had been
heard for years, authorizing legislation had always foundered on concern about giving
the extra appointments to the incumbent president. Finally, on March 3, 1837, the last
day of President Andrew Jackson's last term, a new judiciary act was signed into law.
Charles Warren, 2 The Supreme Court in United States History 313-14 (Little, Brown, &
Co., 1924).
15. Charles Fairman, 6 Oliver Wendell Holmes Devise History of the Supreme Court
of the United States: Reconstruction and Reunion, 1864-88, Part One 2 (Macmillan, 1971).
16. Warren, 3 Supreme Court at 144 (cited in note 14); id. at 223. The original pro-
posal was to revert to nine justices, "thereby creating an odd number of justices and mak-
ing the Court more manageable," but the number was reduced for political purposes. In
fact, the size of the court did not drop below eight before the 1869 Judiciary Act, adopted
after President Andrew Johnson had left office, returned the authorized strength to nine.
Kermit L. Hall, ed., Oxford Companion to the Supreme Court of the United States 475
(Oxford U. Press, 1992). The extra appointment was helpful to the incoming President
Ulysses Grant in securing reversal of the first Legal Tender Case. See Hepburn v. Gris-
wold, 75 U.S. (8 Wall.) 603 (1870), reversed by Knox v. Lee, 79 U.S. (12 Wall.) 457
(1871).
17. Act of Feb. 24, 1806, ch. 16, 2 Stat. 420.
18. 1 Stat. 73 § 1.
2002] HOW MANY JUDGES DOES IT TAKE 685

duck majority to pass a new judiciary act that combined many

admirable features, including the elimination of circuit-riding
and the creation of circuit courts of appeals, with a reduction in
the size of the court from six to five on the next vacancy, appar-
ently to deny the incoming president, Thomas Jefferson, the op-
portunity to make an appointment. 19 The victorious Jefferson-
ians, of course, lost no time in using their newfound legislative
power to reverse the Federalist measure. A repeal act, adopted
March 8, 1802, the first act of the new congress, restored the
status quo ante, jettisoning the good with the bad and returning
the authorized strength of the court to six.Z0 Yet another judici-
ary act cancelled the 1802 term of the court/ 1 apparently to de-
lay the hearing of Marbury v. Madison, a case with implications
for the constitutionality of the abolition of the courts of ap-
peals.22
Legislative fiddling with the number of judges was perhaps
a necessary consequence of the judiciary's new-found security of
tenure. Durante bene placito, "during good pleasure," were the
Latin words that originally described a common law judge's term
of office, as it still describes the term of the Lord Chancellor,
titular head of the English judiciary. 23 Quamdiu se bene gesserit,
"so long as he shall behave himself well," was the formula
adopted in England after the Act of Settlement in 1701 to indi-
cate that a judge could be removed only for good cause shown. 24
The United States Constitution in 1787, dispensing with Latinity,
provided that federal judges hold their offices "during good Be-
haviour."25 Although the Jeffersonians early experimented with
impeachment as a means of cleansing the federal bench of their
enemies, the obvious partisanship of the trial of Justice Samuel
Chase in 1804 made that method of judicial discipline costly and

19. Act of Feb. 13, 1801, ch. 4, 2 Stat. 89. See Katherine Turner, Federalist Policy
and the Judiciary Act of 1801,22 Will. & Mary Q. 3 (1965).
20. Act of March 8, 1802, ch. 8, 2 Stat. 132.
21. Act of April29, 1802, ch. 31,2 Stat. 156.
22. 5 U.S. (1 Cranch) 137 (1803). See also John V. Orth, The Judicial Power of the
United States: The Eleventh Amendment in American History 31-34 (Oxford U. Press,
1987).
23. David M. Walker, The Oxford Companion to Law 384 (Oxford U. Press, 1980).
24. ld. at 1022. On judicial tenure in England, see generally Robert Stevens, The
Independence of the Judiciary: The View From the Lord Chancellor's Office (Oxford U.
Press, 1993). Good behavior tenure was not granted to colonial judges even after the Act
of Settlement, and its denial was one of the grievances of the rebellious colonies. See
Declaration of Independence (1776) ("He [King George III] has made judges dependent
on his will alone, for the tenure of their offices, and the amount and payment of their
salaries.").
25. U.S. Const., Art. III,§ 1.
686 CONSTITUTIONAL COMMENTARY [Vol. 19:681

unreliable? 6 Without a ready means of removing a judge, the

obvious legislative alternative was heightened scrutiny during
the confirmation process-and playing the numbers game by in-
creasing (or decreasing) the size of the court. The political object
might be to affect the course of judicial decision, as with the 1937
court-packing plan, or simply to increase (or decrease) the num-
ber of appointments available to a certain president, as with the
1863 act shrinking the supreme court during President Andrew
Johnson's term of office. Alternatively, congress could try to fid-
dle with the court's jurisdiction under the "exceptions and regu-
lations" clause of Article III.
***
How many judges does it take to make a supreme court?
Three? Five? Seven? Nine? Fifteen? All the most frequently
given answers have one obvious thing in common: they are all
odd numbers. The restriction of the range of likely answers to
odd numbers, of course, makes perfect sense: if the court is fully
staffed and all judges participate, the possibility of a tie vote is
eliminated. 27 The drafters of the first judiciary act presumably
overlooked the necessity to provide a casting vote in case of a tie
when they authorized a supreme court of six, bemused by the
need to correlate the number of justices with the number of cir-
cuits. The drafters of the 1802 repeal, which restored the court's
authorized strength to six from five, were apparently intent only
on undoing the work of their political enemies. The choice of the
anomalous ten justices, briefly authorized during the Civil War,
was necessitated by pressing political concerns, and was
promptly abandoned with the passing of the necessi\Y. The only
question then was whether to revert to nine or seven. 8
If an odd number of judges is so obviously desirable, it is cu-
rious (one is tempted to say odd) that the premier common law
courts, the Court of King's Bench, the Court of Common Pleas,
and the Court of the Exchequer, operated for so many centuries
with four judges each. 29 In a striking simile Francis Bacon likened

26. See Stephen B. Presser, The Original Misunderstanding: The English, the
Americans and the Dialectic of Federalist Jurisprudence 156-58 (Carolina Academic
Press, 1991).
27. In cases within the Supreme Court's appellate jurisdiction, an evenly divided
court leaves the lower court's decision in effect. What would happen in the event of an
evenly divided court in a case within the Supreme Court's original jurisdiction is un-
known. See, e.g., New Hampshire v. Maine, 532 U.S. 742 (2001) (Souter, J., recused).
28. See note 16.
29. William Blackstone, 3 Commentaries on the Laws of England 40-41 (1768) (Re-
printed, U. of Chicago Press, 1979). The judges of the Court of Exchequer were called bar-
2002] HOW MANY JUDGES DOES IT TAKE 687

the "twelve Judges of the realm" to the "twelve lions under Solo-
mon's Throne" mentioned in the Bible. 30 Of course, these courts
were not "supreme" in the sense of the United States Supreme
Court. A writ of error, a proceeding in the nature of an appeal,
lay from Common Pleas to King's Bench, and from King's
Bench, in turn, to the Court of Exchequer Chamber or the
House of Lords. 31 But as a practical matter judgements of the
common law courts were almost always final, and the two
"higher" courts were extraordinary bodies, rarely invoked and of
shifting membership. When reviewing judgements of King's
Bench, the Court of Exchequer Chamber consisted of the four
judges of Common Pleas and the four barons of the Exchequer. 32
The House of Lords, composed of hereditary peers, when acting
as a judicial body was usually guided by the "law lords," a vary-
ing number of peers with judicial experience. 33 It was not until
the Judicature Acts of 1873-75 that English appellate courts
were regularly composed of an odd number of judges: the Eng-
lish Court of Appeal today sits in several divisions of three
judges each. 34
The point here is not that the founders of the common law
thought an even number of judges better, but only that they ap-
parently did not think an odd number necessary. In fact, the his-
tory of the common law is littered with legal bodies with an
even-numbered membership, from the summary courts com-
posed of two justices of the peace35 to the solemn circuit courts
of two justices of assize, not to mention the venerable jury of
twelve "good and lawful men." 36 This fact should give us pause.
Perhaps we need to examine exactly why odd numbers leap to

ons, out of a presumed necessity from a provision in Magna Carta. Id. at 44.
30. Francis Bacon, On Judicature in Francis Bacon, Essays (Lee and Shepard, 1884).
See 1 Kings 10:20 (KJV).
31. Blackstone, 3 Commentaries at 43 (cited in note 29).
32. ld. at 56.
33. Robert Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800·
1976 at 10-13 (U. of North Carolina Press, 1978).
34. Walker, Oxford Companion to Law at 1199-1200 (cited in note 23). Of course,
an appeal may still be taken from the Court of Appeal to the House of Lords. Id. at 585.
35. For examples of summary courts composed of two justices of the peace, see
John V. Orth, Combination and Conspiracy: A Legal History of Trade Unionism, 1721-
1906 at 7, 12, 17, 18 (Oxford U. Press, 1991). When an early example of labor legislation,
the Combination Act of 1799, provided for summary proceedings before one justice of
the peace, a storm of protest led to a speedy repeal and reenactment with changes, in-
cluding a requirement that two justices of the peace hear the case. Id. at 52.
36. The time-hallowed phrase appeared in North Carolina's 1776 and 1868 constitu-
tions, but was deleted in 1946 in order to open jury service to women. See Orth, The
North Carolina State Constitution: A Reference Guide at 19,66 (cited in note 1).
688 CONSTITUTIONAL COMMENTARY [Vol. 19:681

our minds today when we are asked how many judges it takes to
make a supreme court. Could it be that we have come to expect
(and accept) disagreement on legal issues? Could it be that the
common law was not always seen as a subject that necessarily
lent itself to differences of opinion? Could it be that the drafters
of the 1789 Judiciary Act copied the English example of an even
number of judges in part because it was not so obvious to them
as it is to us that split decisions were to be expected?
Why have multi-member courts at all? Why not adopt the
model used for chief executives in which final authority is vested
in one officer, be it constitutional monarch, president, or gover-
nor? The constitution of ancient Sparta with two simultaneous
kings remains a lonely monstrosity in world history. 37 And Penn-
sylvania's early experiment in its 1776 Constitution with an ex-
ecutive council of twelve was quickly aborted. 38 Presumably we
think executive action may on occasion need to be quick and de-
cisive, the product of one rnind. 39 Shifting the focus of compari-
son, why not have single member appellate courts as we now
have single member trial courts? 40 The English Court of Chan-
cery functioned for centuries with a single chancellor (with the
assistance of four vice chancellors);41 the Chancery Court of
Delaware, in which so many important issues of corporate law
are litigated, still does. Presumably the answer is: because we
think a single presiding judge, like a single executive, is better
able to make the quick decisions sometimes necessary in the
rapid give-and-take of a trial. Appellate judging, on the other

37. See Plutarch, The Lives of the Noble Grecians and Romans 53 (John Dryden,
trans., Modem Lib., 1979) (life of Lycurgus).
38. Pa. Const. of 1776, ch. II, § 19, superseded by Pa. Const. of 1790. See J. Paul
Selsam, The Pennsylvania Constitution of 1776: A Study in Revolutionary Democracy (Da
Capo Press. 1971).
39. When quick and decisive action is required of an appellate court, a single judge
is authorized to act, as with applications for stays. See Supreme Court Rule 22 (cited in
note 12).
40. It is true that federal circuit courts, which performed both trial and appellate
work, were from 1793 to 1869 regularly composed of two judges: a supreme court justice
and the resident district judge. See note 7.
41. Who can forget the description of the solitary lord chancellor presiding over his
court in the opening pages of Charles Dickens' Bleak House? . . . .
London. Michaelrnas Term lately over, and the Lord Chancellor s1ttmg m Lm-
coln's Inn Hall .... Fog everywhere. Fog up the river ... ; fog down the river. ...
The raw afternoon is rawest, and the dense fog is densest, and the muddy streets
are muddiest, near that leaden-headed old obstruction, appropriate ornament
for the threshold of a leaden-headed old corporation: Temple Bar. And hard by
Temple Bar, in Lincoln's Inn Hall, at the very heart of the fog sits the Lord
High Chancellor in his High Court of Chancery.
Charles Dickens, Bleak House chap. 1 (Bradbury and Evans, 1853).
2002] HOW MANY JUDGES DOES IT TAKE 689

hand, is viewed as a deliberative process, benefiting from the

contributions of many minds. 42 "In the multitude of counsellors,
there is safety" 43 has been proverbial wisdom since the days of
King Solomon.
Many counsellors, of course, do not necessarily mean
unanimous counsel; indeed, it is in the very variety of counsel
that safety often lies. What must be explained about our view of
appellate judging, in other words, is not only the idea that many
judges are better than one, but also that an odd number of
judges is more eligible than an even one. At the root of the his-
toric shift from an even-numbered to an odd-numbered court
seems to lie a changing assumption about whether deliberation
on legal subjects by trained judges is likely to result in disagree-
ment. It is the unexamined assumption that often tells us more
about what we really believe, and it is the change of assump-
tions, out of sight and without conscious reflection, that registers
the progressions of which we are unaware. In the history of sci-
ence it is called a "paradigm shift. "44
A suggestive episode from English legal history casts a chill-
ing light on our contemporary assumption about the value of an
odd number of judges. It was King James I in the early seven-
teenth century who, according to Blackstone, first saw the need
for a "casting voice in case of a difference of opinion" and "ap-
pointed five judges in every court. "45 The first Stuart monarch is
an uncongenial model for American lawyers. A believer in the di-
vine right of kings, James was frequently at odds with his judges,
and was associated with the notion that "the Judges are but the
delegates of the King" and that therefore "the King may take
what causes he shall please to determine, from the determination
of the Judges and may determine them himself." 46 On a memora-

42. Wythe Holt has pointed out that no trials were ever permitted in federal appel-
late courts in order to preserve the prerogatives of the jury. Hall, ed., Oxford Companion
to the Supreme Court at 472 (cited in note 16).
43. Proverbs 11:14 (KJV).
44. See Thomas S. Kuhn, The Structure of Scientific Revolutions 175 (U. of Chicago
Press, 2d ed. 1970). Kuhn admits to using "paradigm" in two different senses:
On the one hand, it stands for the entire constellation of beliefs, values, tech-
niques, and so on shared by the members of a given community. On the other, it
denotes one sort of element in that constellation, the concrete puzzle-solutions
which, employed as models or examples, can replace explicit rules as a basis for
the solution of the remaining puzzles of normal science.
See also John V. Orth, Taking from A and Giving to B: Substantive Due Process and the
Case of the Shifting Paradigm, 14 Canst. Comm. 337 (1997).
45. Blackstone, 3 Commentaries at 40n (cited in note 29).
46. 12 Co. Rep. 63, 77 Eng. Rep. 1342 (1608) (Archbishop Bancroft). See also
Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward
690 CONSTITUTIONAL COMMENTARY (Vol. 19:681

ble occasion Sir Edward Coke, Chief Justice of Common Pleas,

accused the king to his face of proposing to substitute "natural
reason" for the "artificial reason and judgment of law," 47 and
thereby violate the nascent concept of separation of powers.
Could it be that the king already perceived law as matter for indi-
vidual interpretation and therefore likely to result in divided
counsels? James' idea of providing the courts with a "casting
voice"- the word "vote" was not yet in vogue where judicial ac-
tion was involved-was quickly abandoned by his successors, and
the stigma of Stuart absolutism that attached to the innovation of
a court with an odd number of judges only reinforced English at-
tachment to the traditional four-member courts.
Judging between individual litigants on the basis of long-
established common law rules was not particularly likely to lead
to disagreements in England in the age of Blackstone, a rela-
tively small and homogeneous society. But in America it was a
different matter. Already in 1735 a colonial lawyer had argued
that common law rules on the periphery of the British Empire
might not be identical with those at home in England,48 and a
century later the U.S. Supreme Court itself declared: "The
common law of England is not to be taken in all respects to be
that of America. "49 Deciding what was and was not appropriate
to the changed circumstances of the New World was a question
of a different order than deciding what the common law was, and
increased the risk of disagreement.
Not only did American courts have to rediscover (if not re-
invent) the common law, they also had to construe the require-
ments of the new American constitutions. "It is emphatically the
province and duty of the judicial department to say what the law
is," Chief Justice John Marshall intoned in Marbury v. Madison
with specific reference to constitutional law. 50 This, of course,

Coke 303 (Little, Brown, & Co., 1957).

47. 12 Co. Rep. 65,77 Eng. Rep. 1343. See also John V. Orth, Did Sir Edward Coke
Mean What He Said? 16 Const. Comm. 33, 36-37 (1999). Coke emphasized that "long
study and experience" of the law were required "before that a man can attain to the cog-
nizance of it," suggesting a process of socialization that would minimize differences of
opinions.
48. See James Alexander, A Brief Narrative of the Case and Trial of John Peter
Zenger, Printer of the New York Weekly Journal (Stanley Katz, ed., Belknap Press, 1963)
(argument of Hamilton for defendant) ("what is good Jaw at one time and in one place is
not so at another time and in another place"); id. 67-68. See also Paul Finkelman, Poli-
tics, the Press, and the Law: The Trial of John Peter Zenger in Michal Belknap, ed.,
American Political Trials (Greenwood Press, 1994).
49. Van Ness v. Packard, 27 U.S. (2 Pet.) 137, 144 (1829) (Story, J.).
50. 5 U.S. (1 Cranch) 137 (1803).
2002] HOW MANY JUDGES DOES IT TAKE 691

was to raise the stakes immensely, since custodianship of the

constitution would bring the judiciary into every part of Ameri-
can life and impinge on the cherished prerogatives of the politi-
cians. So exercised was Thomas Jefferson by the possibility of a
decision "perhaps by a majority of one" being presented as the
opinion of the court that he thought there ought to be a law re-
quiring the judges publicly to announce their individual opinions
seriatim, one after the other, so they would, in effect, have to
stand up and be counted. 51
Akin to the question of how many judges it takes to make a
supreme court is the question of the role of the advocates in the
decision of an appellate case. Are opposing counsel, as we seem
to think today, like gladiators in the ring, contending for a
thumbs-up or thumbs-down from the imperial judges? Could
they once have been seen as collaborators with the judges in the
discovery of the law, "officers of the court" in more than name
only? Recall that in many early volumes of the U.S. Reports the
often lengthy arguments of opposing counsel are set out in full
with no obvious break marking the transition to the opinion of
the court. In the exchanges between the judges and counsel in
the old English Reports it is sometimes even difficult to tell ex-
actly which is which. Could both be "sources of the law"? Does
the shift to an exclusive, not to say obsessive, emphasis on the
words of the judges reflect our conversion to a highly positivistic
view of law? The law is what the judges, and no one else, say it
is. Could it be that an earlier generation, not anticipating fre-
quent and endemic disagreements among those "learned in the
law," did not understand the law to be solely the will of the
judges-or, to be more precise, the will of a majority thereof?
We have, seemingly, moved beyond the simple question we
began with. But the number of judges on our ideal court serves
as an index of a much larger issue, our conception of the nature
of law itself. To the extent that law is the application of known
rules to resolve individual disputes, disagreements among the
judges should be relatively rare, and benign-something like
medical experts occasionally disagreeing about the proper
course of treatment, disagreements that we do not, by the way,
necessarily resolve by counting noses. When appellate judging
becomes the elaboration of policy as well as, if not more than,
the resolution of individual disputes, it inevitably begins to

51. See Jean Edward Smith, John Marshall: Definer of a Nation 456 (H. Holt & Co.,
1996) (quoting letter of Jefferson to Thomas Ritchie).
 692 CONSTITUTIONAL COMMENTARY [Vol. 19:681

mimic political decision-making. Law, in such cases, is the con-

tinuation of politics by other means. As the political element
comes to predominate, a method is required for the orderly reso-
lution of disagreements, which in our democratic system is ordi-
narii?; done by majority vote: each to count for one and only
one. 2 Without consciously confronting the question of the na-
ture of law, we nonetheless indicate our likely answer when we
supply an answer to the practical question of how many judges it
takes to make a supreme court.

52. The tradition of judicial opinion-writing, explaining the deliberative process,

continues to set off judicial decision-making from purely majoritarian head-counting. In
its policy-making function the supreme court has become a uniquely powerful adminis-
trative agency, making policy decisions on a special technocratic basis. For a knowledge-
able discussion of the distinction between politics and technocracy in the practice of
American government today and a suggestion for more extensive use of technocratic
agencies, see Alan S. Blinder, Is Government too Political? 76 (no. 6) Foreign Affairs 115
(1997).