The American Judiciary

by Simeon E. Baldwin

The newer States and those with a small population are naturally the ones that rely most on foreign authority. In the last volume (Vol. 26) of the Nevada Reports, sixty-two per cent, of the cases cited in the opinions of the court are of that kind. In the last volume (Vol. 178) of the New York Reports, the percentage is but thirty, and in the last of the Massachusetts Reports (Vol. 185) it is only twenty-five.[Footnote: Law Notes for April, 1905, 8.]

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In the Supreme Court of the United States and in several of the appellate courts of the larger States each judge is provided with a clerk at public expense. While this is a means of relief from much which is in the nature of drudgery, it sometimes leads to a deterioration in the quality of the judicial opinions. A dictated opinion is apt to be unnecessarily long, and when a clerk is set to looking up authorities, although he can hardly be expected always to select the most apposite, it is easier to accept his work and use what he has gathered than to institute an independent search.

Some of the appellate courts which are most fully employed, both State and federal, are provided with special libraries of considerable extent, and each of the individual judges is also often furnished with an official library, sometimes containing several thousand volumes, for his personal use, to be handed over to his successor when he retires from office.[Footnote: In New York, the private library of the Court of Appeals contains over 6,000 volumes, comprehending all the reports of all the States, and the personal libraries provided for each judge have come to comprise 3,500 volumes.]

In some States counsel have the right to demand to be heard before a full court, and those who have taken the appeal generally exercise it. As decisions go by majorities, the chance of reversing a judgment before, for instance, a court of five, which is a common number, is obviously greater when all its members sit than when four do. In either case it must be the act of three judges, and one is more likely to convince three out of five than three out of four.

In the Supreme Court of the United States there is no means of supplying the place of a judge who is absent or disqualified. The remaining members, provided they constitute a quorum (that is, a majority), proceed without him. In most of the States there is some provision for filling the vacancy in such a contingency. Sometimes it is by calling in a judge of an inferior court; sometimes by application to the Governor for the temporary appointment of some member of the bar as a special associate justice to sit in a particular case.

In several of the larger States all the members of the court of last resort do not and need not sit in every case. In some two permanent divisions are constituted, to each of which certain judges are assigned, and both divisions may be in session at the same time. In other States certain judges are detached for a certain time, during which they study causes which have been argued and prepare opinions. This done, they resume their seats, and others are released for similar duties.

In Ohio, for instance, the Supreme Court consists of six judges and commonly sits in two divisions of three each, having equal authority. The whole court sits to hear any cause involving a point of constitutional law. It also decides those which have been heard in one of its divisions and in which the divisional court is in favor of reversing the judgment appealed from. An affirmance by the divisional court is final, but if it inclines to a reversal the judges communicate their opinions to the full court, which also reads the printed briefs submitted on the original argument, and then without any further oral hearing pronounces final judgment. Four judges, therefore, at least, must concur to accomplish a reversal. Should the full court in any case be equally divided, the judgment appealed from stands.

Under the Constitution of California (Art. VI, Sec. 2) the Supreme Court, which consists of seven judges, ordinarily sits in two departments. Three judges can render a decision, but the judgment does not go into full effect for thirty days unless three, including the Chief Justice, have given it their approval. The Chief Justice also, with the concurrence of two of his associates, or four of these without his concurrence, can direct that any cause be heard before a full court within thirty days after judgment by a department court. He can also order the removal into the full court of any cause before judgment.

In Michigan only five out of the eight judges sit to hear a case, and if one of them files an opinion dissenting from that of his associates, the losing party can demand a rehearing before the full court.