When The Legal Intelligencer asked me to address how Pennsylvania’s judiciary has changed over the years for the paper’s 170th anniversary, I first wondered exactly how old they think I am. More seriously, before referencing the judiciary, let me say a word about The Legal. I cannot speak to the importance of the publication to prior generations, but I know it has provided important service to the bench and bar in our times. I say this even though there have been instances where an article reminds me of what Phillies Hall of Famer Mike Schmidt once said about the local sports media: One experiences the thrill of victory followed by the agony of reading about it the next day.
Nonetheless, I accepted the invitation because I saw the opportunity to highlight the extraordinary role of the judiciary as a canvas that reflects significant political and social developments in Pennsylvania’s history. Several moments in my tenure as chief justice stand out to connect today’s court with the court of the past. I will mention two.
The first is symbolic. I had the privilege to preside over our September 2011 session in the historic chambers of the Supreme Court in Old City Hall. I was reminded by the simple décor, the jury boxes and the prisoner’s dock that the central role of judges now, just as then, is to apply an educated common-sense approach to dispense justice to the citizenry. Notably, most of the early judges and justices of the peace composing Pennsylvania’s judiciary were not lawyers, but were laymen with some standing in their communities. Benjamin Franklin was such a judicial appointee.
The second moment is important to the legacy of the Supreme Court: the posthumous admission to the bar of George B. Vashon. Vashon first applied for admission in 1847. His qualifications, after completing bachelor’s and master’s degrees at Oberlin College and clerking for Allegheny County Judge Walter Forward, were impeccable. But Vashon’s application was refused consideration repeatedly solely because he was black. One hundred sixty-three years later, in May 2010, I had the privilege of righting an ancient wrong by presenting Vashon’s descendants with his certificate of admission to the Pennsylvania bar on behalf of a unanimous court.
The earliest lawyers in Pennsylvania, like Vashon later, often trained as clerks with a judge or a local practitioner. These were local alternatives to more expansive training in the Inns of Court in England. In early Pennsylvania, few trained lawyers crossed the Atlantic and practiced in the new world. Nevertheless, the practical needs of a civilized society called for neutral resolution of disputes.
It is no surprise then that the founder of Pennsylvania, William Penn, quickly provided for a provincial court system. Today’s Supreme Court traces its roots to the Provincial Court created by Penn on June 4, 1684. In 1681, Penn had obtained large land holdings in America from England’s Charles II as repayment for debts owed to Penn’s father. Penn established a haven for groups persecuted for their religious beliefs in England and elsewhere, most prominently Quakers, but also Mennonites, the Amish and Roman Catholics. The royal Pennsylvania Charter of March 1681 empowered Penn to promulgate laws for his colony, including the authority to provide a judicial apparatus. Penn first provided for county courts in Philadelphia, Chester and Bucks counties, as well as in counties that later formed the state of Delaware. Penn and his Provincial Council served as a higher court; the council also exercised exclusive original jurisdiction over cases of murder, treason, manslaughter and other serious crimes.
In April 1684, however, the Provincial Council accepted Penn’s proposal for a separate Provincial Court consisting of five judges. After debating the wisdom of the proprietor naming the members of the court, the Provincial Assembly agreed to the creation of the court and bestowed upon it powers of equity. Twice yearly, the judges held sessions in Philadelphia and rode circuit in each of the existing six counties. Over the years, the Provincial Court was often a crucible of political and religious tensions that would shape the authority and jurisdiction of the judicial branch. While many appointed justices were laymen, the Provincial Court generally obtained its identity from those men educated in law — the chief justices. Franklin, for example, resigned his judicial post in favor of other government service, perhaps realizing that the study of law was a major undertaking not suiting his already diverse interests.
At first, the justices served short terms, at the pleasure of the proprietor, acting through the governor and Provincial Council. The Judiciary Act of 1722 then stabilized and renamed Pennsylvania’s high court the Supreme Court. The three justices of the court were tasked to ride circuit to try capital felony cases, and to hear civil cases on appeal. By the 1730s, the Supreme Court exercised powers of England’s three great courts: Common Pleas, Exchequer and King’s Bench. The council’s judicial role diminished considerably. The Supreme Court still retains the powers of the King’s Bench to this day.
The Supreme Court’s docket expanded rapidly beginning in the mid-1700s, to reflect the increasing number and diversity of the population and the growing sophistication of Pennsylvania’s legal practitioners. Holding circuit in each county proved expensive and impracticable, especially in frontier counties. Another concern was that much of the cost of trials on circuit was borne by the poorest citizens, including criminal defendants who were assessed trial costs, even when acquitted. This rendered defense in criminal matters beyond the reach of some, contrary to the founding principle assuring an accessible system of justice available to all. Despite its shortcomings, however, the authority of the Supreme Court in judicial matters was recognized and respected. By the time of the American Revolution, the court was a defined institution with clear procedures and distinct relationships to the Provincial Assembly and Council.
The American Revolution coincided with a turning point in the history of the Pennsylvania judiciary. The new commonwealth adopted a constitution in 1776. Thomas Paine described that charter as "a generous constitution … which considers mankind as they came from their maker’s hands — a mere man, before it can be known what shall be his fortune or his state." This constitution continued the existing powers of the Supreme Court and of the common pleas courts. Moreover, as a bulwark against renewal of earlier efforts by the proprietors and the legislature to control the judiciary, the 1776 constitution established fixed judicial salaries and tenures of seven years, subject to reappointment.
The 1776 constitution also commanded that "all courts shall be open, and justice shall be impartially administered without corruption or unnecessary delay." A century later, economic and social changes presented a serious challenge to this constitutional promise. The advent of corporations, coal, steel, railways and the complex commercial relationships within which the new industries operated called for a modern judicial system that could meet these new demands. The 1873 Constitutional Convention addressed the unsustainable caseload of what was then a five-justice Supreme Court, with the resulting constitution of 1874 increasing the number of justices to seven and circumscribing the court’s jurisdiction.
The caseload problem did not abate, however, leading to other reforms. In 1895, the legislature created an intermediate appellate tribunal, the Superior Court. Initially, the proposal had been to create several circuit courts throughout Pennsylvania, with both appellate and original jurisdiction. These proposals were defeated in favor of a single intermediate court with appellate jurisdiction over all civil actions involving $1,000 or less. Appeals to the Supreme Court from the Superior Court were authorized under limited circumstances. The Superior Court was originally allotted seven judges elected for 10-year terms and was to hold annual sessions in Philadelphia, Pittsburgh, Harrisburg, Scranton and Williamsport.
Efforts at further modernizing the judiciary were defeated over the ensuing years. In the 1950s, however, the Commission on Constitutional Revision, appointed by the legislature and chaired by Superior Court Judge Robert Woodside, identified specific areas in which modernization was "critically needed." The commission urged comprehensive reform of the judiciary, in incremental steps via constitutional amendments. The commission’s entreaties were defeated, but new movements by the bar association and others eventually succeeded, and the Constitutional Convention of 1967 was tasked to address several parts of the constitution of 1874 affecting the judiciary.
Thus, the 1967 convention adopted, with little debate, and voters ultimately approved, the hierarchical Unified Judicial System (UJS) model by then common in other states. All courts were placed under the direct supervision and administrative control of the Supreme Court. The convention also addressed intermediate appellate courts. The Superior Court’s basic structure was retained, subject to modification of its composition and jurisdiction by statute. But the convention created a second intermediate appellate court, the Commonwealth Court. Although details regarding its composition and jurisdiction were left to legislative refinement, the Commonwealth Court generally replaced the role that the Dauphin County Court of Common Pleas had played in matters concerning state issues and administrative agencies. Today, the Commonwealth Court serves as a court of appeals from administrative agency determinations, while also exercising original jurisdiction in enumerated cases, such as civil matters involving the commonwealth as a litigant and election matters.
The convention also introduced the concept of nonpartisan retention elections for judicial offices, and established for the first time a mandatory retirement age for judges. The convention further debated questions of gubernatorial appointment versus popular election of judges. Judges in Pennsylvania had been elected by citizens since the 1850 constitution. After convention members divided on the question, it was submitted directly to the people, who supported the election of judges in a 1968 referendum.
Today, the UJS operates under the 1968 constitution. The Supreme Court has undertaken its supervisory and administrative tasks in earnest, with the assistance of the Administrative Office of Pennsylvania Courts, established in January 1969. The AOPC is responsible for assuring that the business of the court system is conducted promptly and properly. The AOPC, for example, implements initiatives for judicial security and education, and maintains case management systems and a website (www.pacourts.us/courts). There, the public can access opinions, docket sheets, forms and public records.
The modern Supreme Court’s responsibilities go far beyond deciding cases and supervising the UJS. The court supervises the practice of law through bar admission, continuing legal education and attorney discipline. The court continually monitors rules of procedure to better deliver justice in the trial and appellate courts. And the court is active in other areas important to the administration of justice, such as management of funds to assist disadvantaged citizens in obtaining access to civil legal services and advice on long-term policy planning, including initiatives to keep courts free of bias and discrimination. Discharging these tasks is made possible only by the efforts of distinguished and talented citizens and members of the bar volunteering their time. In all, the court has nine standing committees, six boards and five advisory panels composed of more than 180 attorney and non-attorney citizen volunteers. These bodies serve a crucial and under-acknowledged role in the commonwealth’s justice system.
Finally, the court today "rides circuit" in a limited fashion, holding six sessions a year, twice each in Philadelphia, Pittsburgh and Harrisburg. The sessions are open to the public and are also televised on the Pennsylvania Cable Network. For citizens interested in how the court works, the sessions can prove very informative. Also, if you are in one of the courtrooms, please take note of the beautiful adornments. Of particular note are the murals in the Supreme Court courtroom in the Capitol Building in Harrisburg, completed by famed Philadelphia muralist Violet Oakley.
On behalf of the court, I salute The Legal on its anniversary. The Legal‘s modern flexibility and initiative, while continuing to discharge its same core mission, in many ways tracks the development of the Supreme Court itself. I offer best wishes for continued success in serving the legal community.
Ronald D. Castille is chief justice of the Supreme Court of Pennsylvania. He recommends the works of G.S. Rowe, Embattled Bench: The Pennsylvania Supreme Court and The Forging of a Democratic Society, 1684–1809, and Patrick R. Tamilia and John J. Hare, Keystone of Justice: The Pennsylvania Superior Court, which served as primary sources for this article.