Add another Supreme Court?

I agree generally with** Noel Prosequi**'s points above, with one quibble and one qualification.

The quibble is with this statement:

I think it’s better to say that the Court is not deciding the issue and lets the lower court decision stand. My understanding of the cert. practice in the SCOTUS and the leave to appeal practice in the Supreme Court of Canada is that when the Courts refuse to take an appeal, that decision is not an affirmation of the lower court decision, and does not have any precedential value. (That is, lower courts do not treat the denial as a precedent on that point from the Supreme Court.) The Court simply doesn’t want to take that particular appeal.

The qualification is with this statement:

I think that there is a major difference on this point between the common law systems and the civil law systems. In the common law systems, derived from the English courts, the model is for courts of general jurisdiction, or at least very broad jurisdictions. Thus, the major trial courts generally have jurisdiction over all matters, and the ultimate appellate courts in most common law jurisdictions are courts of general appeal, which can hear appeals on any question of law. (The SCOTUS is an exception to this general characteristic of the common law countries.) If you look at a chart of the court systems in common law jurisdictions, they tend to be pyramidal, with a number of lower courts (usually divided by territorial jurisdictions) all feeding up into a series of intermediate appellate courts, with one court at the apex.

However, my understanding is that in the civil law system, there is a much greater willingness to split up legal issues by subject matter and to have parallel court systems: a criminal court system, an administrative law courts system, a civil law court system, a commerical law court system, a family law court system, and so on - each with their own ultimate court (e.g. - the French Conseil d’État and the Cour de cassation referred to by clairobscur - they are both the ultimate appellate court for their part of the court system.)

Constitutional courts are often “to the side”, so to speak - they often do not have original jurisdiction, but receive cases from the other courts, who refer them for a decision on a constitutional issue. Once the constitutional court has decided the constitutional issue, it refers the case back to the original court for further proceedings.

Now, to me as a common lawyer, that seems a weird system, and our system of courts of general jurisdiction is so ingrained in me that I don’t know how the civilians make it work without turf wars between the courts, as happened between the four superior courts in England, prior to unification. However, the civilians do make it work. I don’t think that model would transpose well into a common law system (although South Africa has adopted the idea of a separate constitutional court, I believe), but given the civilian experience I don’t think we can say outright that it can’t work. I just don’t think it would work well in a common law system.

No quibbles or qualifications here. :stuck_out_tongue:

There were actually several proposals for a National Court of Appeals in the late Seventies and early Eighties; then-Chief Justice Warren Burger was very much in favor of it. But nothing came of it, because (a) one President would get to appoint all of the judges to it, and (b) Congress wasn’t convinced that the Supreme Court was all that swamped. As was noted above, SCOTUS is even less busy now, so the likelihood of it happening - or of the court being “split” somehow - is very, very small.

Obviously you aren’t acquainted with “circuit splits” then :wink:
Look, the entire point of our legal system is that many non black-and-white legal issues teeter on a pinhead, and falling to either side of the issue will still be a reasonable outcome. if you have two separate judges/groups of judges, they can both reach completely learned, reasonable opinions that are diametrically opposed to one another - you need the artificiality of the “last court” to handle this inconsistency.

As the great Justice Oliver Wendell Holmes Jr. is said to have remarked, “We are not final because we are infallible; we are infallible because we are final.”

Some justices would like the court to be doing even more: http://www.politicsdaily.com/2010/04/29/supreme-courts-right-wing-wants-more-cases/

I agree with the observations made by my learned friends, Northern Piper and Noel Prosequi, but some comments

  1. Northern Piper mentioned that in common law systems courts are general courts, I would say that is true of Appeals courts more than First Instance courts, for instance England and Wales, original civil; (depending on pecuniary limit, currently 50,000 pounds) County or High Courts, original Criminal, Magistrates or Crown Courts, depending on the offence. But yes our appeals courts are usually general purpose, though note that the Court of Appeal has a Criminal and Civil division.

  2. Once again I must humbly disagree with my learned friends Northern Piper with respect to the US Supreme Court being different from other courts becasuse of the limits of the nature of appeals it hears. I would say that it is very much in line with other Apex Courts, the grounds of appeal are not only difficult to get admitted for hearing, they are also limited in scope, Constitutional issue are some of the easier ones to get.