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

And Other Essays on Law and the Constitution

John V. Orth

Why do appellate courts always have an odd number of judges? And what does the answer tell us about changing concepts of law? How can common law be unconstitutional? Why does the power of judges depend on accurate court reporting?

Because legal education today has come to focus so much on teaching students "how to think like lawyers," some subjects do not fit comfortably in law school curricula. John Orth, a distinguished senior law scholar, here explores some of these neglected but important topics. His insightful volume invites students of the law to look at the origins of accepted legal practices as a means of gaining insight into the judicial role and the evolution of common law.

“Orth’s elegant and pithy collection of essays stimulates the imagination of the legal historian and would enrich any law school or undergraduate class on legal history or legal theory.

—Law and History Review

“The brief length of this book should not mask its comprehensive overview of certain subject, such as common law. The information presented is meticulously noted. . . . Should be of interest to legal experts and students alike. Pertaining to the latter audience, the book would be most appropriate in an advanced undergraduate or introductory graduate course on the American legal system.

—Law and Politics Book Review
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In six carefully reasoned and clearly argued articles-four never before published—Orth presents the familiar in a fresh light. He considers, in addition to the questions already mentioned, how the centuries-old common law tradition interacts with statutory law-making, why claims that individual rights are grounded in common law are suspect, and how the common law uses what it learns about the past.

In considering these questions related to common law and its remarkable longevity, Orth illuminates both its interaction with written constitutions and its longstanding preoccupation with procedure and property. And by questioning the assertion that individualism was the cornerstone of common law, he deftly resolves an objection that liberal scholars sometimes raise concerning common law—its connection to the Lochner era of Supreme Court jurisprudence. Together, these essays show that common law is constantly in motion, using and reusing techniques that have kept it viable for centuries.

How many judges does it take to make a supreme court? As Orth observes, the institutional novelty of odd numbers of judges provided a means to break ties but did nothing to guarantee acceptance of their decisions. By demonstrating that what seems obvious about the law today was not always so, he cogently addresses changing perceptions of law and invites its future practitioners not only to think like lawyers but also to be more fully grounded in the law.

About the Author

John V. Orth is William Rand Kenan, Jr., Professor of Law at the University of North Carolina at Chapel Hill. Other books by Orth include Combination and Conspiracy: A Legal History of Trade Unionism, 1721-1906; The Judicial Power of the United States: The Eleventh Amendment in American History; and Due Process of Law: A Brief History.