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

By Ross E. Davies. Full text here.

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].” If this were true, it would be necessary to amend the Constitution before Congress could act to back up the Supreme Court.

But early Congresses did not treat the Constitution’s “one supreme Court” language as an absolute bar to all subdivision of the structure of the Court. The most striking and long-lived example of a division of the Court is the one-Justice rump Supreme Court that sat at a special August Term from 1802 to 1838. This Court’s 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 the continuity of its operations in the wake of calamity. 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.