Common‐law Court

Common‐law Court The Supreme Court is a common‐law court that operates in a system that has little federal common law. Yet its common‐law nature is important to the Court's functioning as a constitutional arbiter. Common law is a system of law made not by legislatures but by courts and judges. Although often called “unwritten law,” the phrase actually refers only to the source of law, which is presumed to be universal custom, reason, or natural law. In common law, the substance of the law is to be found in the published reports of court decisions. Two points are critical to the workings of a common‐law system. First, law emerges only through litigation about actual controversies. Second, precedent guides courts: holdings in a case must follow previous rulings, if the facts are identical. This is the principle of stare decisis. But subsequent cases can also change the law. If the facts of a new case are distinguishable, a new rule can emerge. And sometimes, if the grounds of a precedent are seen to be wrong, the holding can be overruled by later courts.

When the Constitution was drafted, American society was infused with common‐law ideas. Common law originated in the medieval English royal courts. By 1776, it had been received in all the British colonies. The revolutionary experience heightened Americans' adherence to common law, especially to the idea that the principles embodied in the common law controlled the government. While there is no express provision in the Constitution stating that the Supreme Court is a common‐law court, Article III divides the jurisdiction of federal courts into law (meaning common law), equity, and admiralty. The Philadelphia Convention of 1787 rejected language that would limit federal jurisdiction to matters controlled by congressional statute. Thus the Constitution implicitly recognizes the Supreme Court as a common‐law court, as does the Seventh Amendment in the Bill of Rights.

The Constitution left open the question whether there was a federal common law. The Supreme Court first held, in United States v. Hudson and Goodwin (1812), that there is no federal common law of crimes, and then, in Wheaton v. Peters (1834), that there is no federal civil common law. But in Swift v. Tyson (1842), the Court permitted lower federal courts to decide commercial law questions on the basis of “the general principles and doctrines of commercial jurisprudence” (p. 19), thus opening the door to later growth of a general federal common law. A century later, the Court put a stop to this development in Erie Railroad v. Tompkins (1938) by declaring Swift unconstitutional. (Yet, at the same time, it acknowledged the existence of bodies of specialized federal common law, such as, for example, judicial development of a body of labor law under federal statutes governing labor relations.) Today, federal courts must generally follow state substantive law, including state common law.

Despite the lack of a federal common law, the Supreme Court relies on common law in interpreting the Constitution. For example, it refuses to render advisory opinions, waiting instead for litigants to bring issues before it. Precedent shapes the Court's power of judicial review; because of it, any ruling of the Court is a precedent for similar cases. Thus if one state's law is held unconstitutional, all similar statutes in other states are unconstitutional, a point the Court was obliged to underscore forcibly in Cooper v. Aaron (1958) in the face of intransigent southern resistance to the Court's holding in Brown v. Board of Education (1954).

Bibliography

Karl Llewellyn , The Common‐Law Tradition: Deciding Appeals (1960).

Richard F. Hamm