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Book Review
| John V. Orth, How Many Judges Does It Take to Make a Supreme Court? And Other Essays on Law and the Constitution, Lawrence: University Press of Kansas, 2006. Pp. 134. $25.00 cloth (ISBN 0-7006-1478-3); $12.95 paper (ISBN 0-7006-1479-0).
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| John V. 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. As Orth explains, his aim is not to provide "a general narrative of the history of the common law" (117). Instead, the essays contained in How Many Judges illuminate aspects of the common law neglected or marginalized by legal education as currently practiced in America today and raise provocative questions for further historical investigation. Analyses of concrete historical instances are therefore interspersed more in the form of examples than within a sustained development and the book as a whole is, as Orth instructs, generally "to be read 'above the line,'" without excessive focus on the footnotes. These aspects of the form render How Many Judges both suggestive and pre-eminently readable. |
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Although the book is comprised of five essays, a few of which have previously been published separately, common themes emerge. These include: the development of American law out of English common law; the relations among the common law, statutes, and the written U.S. Constitution; and the rise of a positivistic notion of law and the concomitant concern with the documentation of legal decisions. Some of these motifs inevitably come to seem more generative than others during the course of the book. |
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The title essay, "How Many Judges Does It Take to Make a Supreme Court?," amply demonstrates Orth's talent for asking and addressing questions that seem to lie at the margins of American law but may actually provide substantial insight into its workings. Starting from our assumption that a supreme court should be composed of an odd number of justices, Orth asks why we believe this, and whether our belief is inevitable. Looking back in American history, during the course of which an even number of justices several times sat upon the Supreme Court, and to earlier English tribunals, Orth demonstrates that "the founders of the common law ... did not think an odd number [of judges] necessary" (13). Treating the reasons for the shift from this viewpoint to the present assumption that a Supreme Court should include an odd number of justices, Orth posits that the change corresponded with an increase in awareness of the possibility of legal disagreement and the rise of the view that this disagreement could be resolved positivistically by the decision of a majority of justices. |
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The confines of a single essay are too narrow to permit sufficient elaboration of this thesis and the reader may be left with further questions. What, for example, is the relationship between the kind of legal difference or disagreement represented by the historical delivery of seriatim opinions in common law courts (34) as well as the disparity between various reports of the same case (28) and the type that Orth claims was only recently recognized? Was disagreement simply latent in earlier periods rather than explicitly acknowledged and why might this have been? And how do we account for the ancient recognition of the problems that might arise when legal decision-makers are evenly divided, such as the staging of this dilemma at the end of bbbbschylus' Eumenides, where the goddess Athena is obliged to cast the deciding vote in favor of Orestes? |
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Several of the other essays in How Many Judges similarly refocus the reader on questions that would reward further exploration. In "The Secret Sources of Judicial Power," Orth examines the roles of judicial reporting and the development of the norm of the unanimous decision in increasing judicial power. The production of law reports, Orth claims, furthers the "effectiveness of precedent" (29) and, in conjunction with the unitary opinion, makes judges' "explanations available to a wide audience" (38). The essay tends to take the conception of precedent as a given though, rather than examining how it may itself have been transformed by changes in the manner of reporting cases. Finally, the last essay, on "The Ideology of the Common Law," helpfully reminds the reader of the common law's historical focus on procedure and property and contends that it came to embody individualist principles relatively late. The effectiveness of the essay is limited, however, by its attempt to respond to stylized and now abandoned law and economics narratives about the common law. |
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As he writes in the Preface, Orth aims to "stimulate ... others to add their information and insights to extend the inquiry" commenced by the essays in How Many Judges (xii). Whether a law professor or historian, a law student or an undergraduate, the reader of this collection will undoubtedly discover in it a new perspective on the history of the common law and new angles to himself pursue. |
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| Bernadette Meyler
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| Cornell Law School |
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