by John V. Orth. Lawrence: University Press of Kansas, 2006. 104pp. Cloth. $25.00. ISBN: 9780700614783. Paper. $12.95. ISBN: 9780700614790.
Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.
John Orth, a professor of law at the University of North Carolina at Chapel Hill, has combined previously published essays with new ones in HOW MANY JUDGES DOES IT TAKE TO MAKE A SUPREME COURT? The objective of the text is to explore some of the “neglected but important topics” which “evade systematic study in law school” (p.viii). Orth has previously published studies tracing the history of trade unionism, the Eleventh Amendment, and due process of law.
In Chapter 1, the question about how many judges should comprise various courts is probed. Because the number of Supreme Court justices was tied to the number of circuit courts and the latter courts were controlled by Congress, Orth contends that “political considerations often played a role in determining when to recognize new circuits and which states to include” (p.4). It also became evident that the Senate tried to countermand the life tenure of Supreme Court justices with “heightened scrutiny during the confirmation process – and playing the numbers game by increasing (or decreasing) the size of the court” (p.10). Orth disputes the long-held view that an odd number of judges is necessary on various multi-person courts by noting that the practice was not regularly used in British appellate courts until the last quarter of the nineteenth century.
In Chapter 2, various sources of judicial power – defined as “the legal authority to resolve disputes in appropriate cases” (p.48) – are identified. A part of judicial power lies in the ability to enforce judicial decisions, which is not only accomplished by the acquiescence of the public, but by court personnel and constitutional authority granted to the chief executive. Other sources of judicial power include the doctrine of precedent, the evolution of law reports published alongside decisions, the practice of releasing a single opinion to represent the majority view of a court, expert employment of judicial authority, and the rules and procedures adopted by diverse courts.
Chapters 3 through 5 assess the nature of common law as applied to the American political system. The origin of common law dates back to 12th century England and “was made over the years by the judges in their decisions of individual cases. These decisions not only resolved the disputes at issue, they also established rules for decisions in other similar cases” (p.59). The subsequent handing down of the common law from the British to the Americans did not occur seamlessly, as the development of federal and state constitutions, the [*193] separation of powers principle, and statutes have each occasionally produced conflicts with tradition. Despite this tension, common law has persisted because of its adaptability. Perhaps the best example of this is how contracts replaced property as the central focus of common law. The flexibility of common law has been reflected in judicial reasoning, in methods by which the law is taught, and in the eschewing of ideological influences.
The Conclusion of the book is subtitled, “Looking Backward, Looking Forward.” This chapter largely summarizes without synthesis the previous material. However, Orth ends the text with a prediction about the predominance of law for future human affairs: “Law will certainly remain with us as long as we remain the violence-prone, greedy, disputatious creatures we have always been. Even could we transcend that legacy –whether it be from evolution or original sin – we will still need an orderly means to arrange our affairs and resolve our inevitable disagreements” (p.120).
Because the Orth text is a collection of chapters on several distinct if interconnected topics, there are few similar books containing all of the subjects covered. However, there are entire books which may be compared to parts of Orth’s research. For instance, Virginia Hettinger, Stefanie Lindquist, and Wendy Martinek’s 2007 study of federal appellate decision making addresses the question of whether differences of opinion among judges serves to maintain the integrity or undermine the legitimacy of such courts. In their 2006 work, Thomas Hansford and James Spriggs demonstrate how both law and politics play pivotal roles when interpreting Supreme Court precedents. Finally, two books published in the 1990s – one by Melvin Eisenberg in 1991 and the other by Norman Cantor in 1997 – comprehensively analyze the common law tradition and its impact on the American legal system.
The brief length of the Orth book should not mask its comprehensive overview of certain subjects, such as common law. The information presented is meticulously noted, and tables of cases and statutes are added at the end. There are a few shortcomings apparent. For instance, Orth omits an important contemporary source of judicial power in Chapter 2: the US Supreme Court chief justice’s annual report on the state of the federal judiciary. These speeches have flagged deficiencies in the federal courts, such as staff and judicial salaries, but have likewise constituted influential policy statements. Further, the discussion of ideological threats to American courts found in the Conclusion is potentially inconsistent with how that topic is treated in the preceding chapter. Finally, as is normally the case with a series of essays – even if offered by a single author – there is repetition of some definitions of terms.
Overall, the theme and content of Orth’s scholarship 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. [*194]
Cantor, Norman F. 1997. IMAGINING THE LAW: COMMON LAW AND THE FOUNDATIONS OF THE AMERICAN LEGAL SYSTEM. New York: HarperCollins.
Eisenberg, Melvin A. 1991. THE NATURE OF THE COMMON LAW. Cambridge: Harvard University Press.
Hansford, Thomas G., and James F. Spriggs II. 2006. THE POLITICS OF PRECEDENT ON THE U.S. SUPREME COURT. Princeton: Princeton University Press.
Hettinger, Virginia A., Stefanie A. Lindquist, and Wendy L. Martinek. 2007. JUDGING ON A COLLEGIAL COURT: INFLUENCES ON FEDERAL APPELLATE DECISION MAKING. Charlottesville: University of Virginia Press.
Copyright 2008 by the author, Samuel B. Hoff.