From the very beginning of the US Supreme Court, we've required a quorum of Justices to be present to hear a case. Unfortunately, seeing as we set up a co-equal judiciary rather than the parliamentary dominance over English common law, we did not have England to use as an example.

We have had multiple opportunities to change this, like the Judiciary Acts of 1891 and 1925 where Congress decided that rather than expand the Supreme Court or allow assignment of cases to a panel of Justices like it does the circuit courts, we would simply give the judiciary greater power to pick which cases it heard. To me, this implies that the quorum model was not only intentional, but that it was important enough to preserve for the length of our democracy.

So why is the US Supreme Court set up to only hear cases 'en banc'?

1 Answer 1


The practice of having all SCOTUS cases heard by the whole court (en banc) rather than by individual justices or panels is nowhere specified in the US Constitution. Nor is it mentioned by The Federalist which is often a good source on the intentions of the Framers.

It seems to have been adopted by the first session of the court with little discussion -- at least none that has come down to us.

I strongly suspect that English models were in the minds of those early court members, but I do not know exactly which models. The practice of the various state Supreme courts may also have been influential. This practice seems to have been confirmed and definitely settled by Chief Justice John Marshall, who did so much to define the Court's procedure. He also strongly encouraged the court to issue a single option in each case, discouraging both concurring and dissenting opinions. He felt that the Court should always speak with a single voice. During the first fifteen years of his tenure, he himself wrote close tom 90% of the court opinions, according to an academic study of the Marshal Court I read about a year ago.

It is worth recalling that in the early years there were not many SC cases, and there was no need to split up the work of the court. It is also worth remembering that at that tine there were no separate appeals courts. Rather, each Justice "rode circuit" holding court in several different cities, in each sitting with one or two District Court judges as a panel court. Thus when a case reached the SC on appeal, it had already been passed on by a single Justice. The justices, through the end of the Marshall Court in the 1830s spent more than half of each year on circuit.

Addition: One should also remember thst from the start through the 1830s the Justices lived in boarding houses during the Court term, and in most terms most or all of the Justices lived in the same house, where the work of the Court was discussed over dinner and in the evenings.

None of which Really answers "why do we do it this way?" I do not know of any document that first laid out this practice, much less gave reasons for it.

  • The court of last relief in the Colonies and a partial model, was the Privy Council of the House of Lords. As originally formed, SCOTUS was too small to hear cases any other way. Also, worth noting that there were no direct appeals in federal criminal cases until the 1890s, a century after SCOTUS was formed, when the U.S. Circuit Courts of Appeal were created. Until then, direct appeals were limited to civil cases. There were, however, appeals of civil habeas corpus collateral attacks on criminal convictions.
    – ohwilleke
    Oct 29, 2020 at 18:14
  • The "discuss over dinner" issue is still enforced in the modern era in that all nine Justices will have lunch in the SCOTUS Cafeteria together while in session. In fact, it's tradition that the newest Justice is in charge of the Cafeteria menu (this forces them to go to all of the other 8 justices and asking a question that is apolitical "What do you like to eat?" and getting to know them.).
    – hszmv
    Nov 6, 2020 at 13:17

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