The prospect, announced in March 2019, that the Appellate Division, First Department, would sit in panels of four justices, rather than the customary five, sparked, or perhaps re-kindled, a discussion as to the ideal number of judges to sit collectively to hear individual appeals. I say re-kindled because the Second Department has been sitting mainly in panels of four since 1978. While a 1990 task force report encouraged the Second Department to resume sitting in panels of five as soon as possible, nearly 30 years have elapsed since then and the status quo has gained at least grudging acceptance. That the First Department would join the Second in sitting in fours was not welcomed by some prominent bar leaders and leading appellate practitioners. Some cited the prospect of having an appeal re-argued because of a two-two tie; others thought that a panel of four was inherently unfair to litigants since it is harder, if not impossible, in civil cases to gain the right to appeal a civil case to the Court of Appeals on the basis of a two-justice dissent. So when I was asked to address the topic of panel numerosity, I jumped at the chance.

After having researched how we came to the panel numbers we have, I conclude that there is no ideal number. Our current system, both in the federal and New York state courts, is predicated upon compromises wrought in years past to address the problems of those long-ago times. While the numerical composition of the U.S. Supreme Court once fluctuated because of partisan political interests, the New York state experience reflects that, for the most part, our predecessors debated and acted primarily, if not exclusively, for the betterment of the judicial system and the public interest.

There is no "right" number for an appellate bench. There is, instead, a balance to be struck between a court large enough to reflect diversity of experience and background and a court so large as to be unwieldy. The minimum number is, of course, one. There are a surprising number of one-judge reviews, though mostly such reviews are not technically defined as appeals. Outside of the First and Second Departments, an appeal from a city, town or village court is heard by a single county court judge. In the federal system, review of decisions by a bankruptcy judge or magistrate judge is, in most instances, to the federal district court, a panel of one. Recently, the State Legislature, as part of its changes to discovery in criminal cases, created a new procedure for expedited review of determinations granting or denying protective orders, a review to be conducted by an individual justice of the intermediate appellate court. On the other hand, the federal circuit courts of appeal may sit en banc to rehear appeals previously decided by a three-judge panel. Since all of the judges in active service participate, and in some instances, senior judges may do so as well, the number of judges sitting en banc can be substantial, certainly approaching, if not exceeding, a dozen or more.

A History of Panel Size

During the Constitutional Convention, Alexander Hamilton, of Broadway fame, proposed that the U.S. Supreme Court have 12 members. The number was tied into his proposal to have impeachment trials of federal officials conducted by a tribunal consisting of the U.S. Supreme Court Justices and the Chief Judges of the States. So 13 State Chief Judges, 12 Supreme Court Justices to mostly balance them out. The Constitution ended up without specifying a number of Supreme Court Justices. The U.S. Supreme Court actually began, under the Judiciary Act of 1789, with six Justices. This number arose from the fact that the country was divided into three judicial circuits, each to be visited twice a year by two Supreme Court Justices; hence six justices, just enough so that each justice would only have to cover one circuit. However, in 1801, the Federalists, having lost the election of 1800 to Thomas Jefferson, used their lame-duck majority to eliminate circuit-riding and to reduce the Supreme Court to five, upon the next vacancy, thus seeking to deny Jefferson an appointment. While the story of midnight judges is well known, leading eventually to Marbury v. Madison, the attempted shrinking of the Supreme Court is less so. Perhaps this is because the Jeffersonians promptly reversed it, restoring the Supreme Court back to six. (For good measure, the Jeffersonians also canceled the 1802 term of the Court, in order to delay the argument of Marbury v. Madison).

The number of Supreme Court Justices was increased to seven in 1807, because of the growth of circuit-riding duties, and then increased to nine in 1837. A tenth Justice was added in 1863 in the midst of the Civil War. However, Congress reduced the number of seats to seven in 1866 in order to prevent President Andrew Johnson from appointing justices who might share his views on the constitutionality of reconstruction legislation. This was to be accomplished by not replacing the next three justices to retire. Within two years, two justices did retire, bringing the number of justices to eight. The Court was returned to nine members in 1869 and it has stayed at that number ever since.

In 1937, President Franklin D. Roosevelt proposed what became known as a "court-packing plan", out of frustration from the treatment given to New Deal legislation by the Court. He sought legislation permitting him to appoint one new justice for every sitting justice over the age of 70, up to a maximum of 15. In opposition to this legislation, some members of the Court expressed the concern that if "you make the Court a convention instead of a small body of experts", confusion would result which would cloud the work of the Court. The Roosevelt plan was not adopted. And while the number of Justices has stayed at nine for 150 years, in the past year or so some Democrats, after Merrick Garland's nomination was not considered and after President Trump's appointments of Neil Gorsuch and Brett Kavanaugh, have suggested that, should a Democrat be elected President and both House and Senate have Democratic majorities, the number of Justices should be increased in order to neutralize the effect of the Garland, Gorsuch, and Kavanaugh developments. The New York Times has even polled announced 2020 Democratic Presidential candidates as to where they stand on this prospect, with decidedly mixed results.

The New York Court of Appeals came into being under the Constitution of 1846. Prior to the creation of the Court of Appeals, there was a Court for the Correction of Errors, which was modeled on the traditional English House of Lords. This Court consisted of the Lieutenant Governor, the entire State Senate, together with the Chancellor, and the Justices of the Supreme Court. This was a rather large group (since there were 33 just from the Senate), made up mostly of non-lawyers. Unsurprisingly, it also was disposed not to declare statutes unconstitutional. In the 70 years that preceded its abolition, it declared only three statutes unconstitutional. It was said that a court which included the entirety of one house of the Legislature , with only a small minority of members drawn from the judiciary, "was not the best form of a high judicial tribunal under our system of government and that the semipolitical and semijudicial tribunal so constituted could not be expected to work out the best results in the administration of justice."

The new Court of Appeals was comprised of eight judges. Four were elected state-wide for eight year terms, while the other four were to be selected out of the Supreme Court Justices who had the shortest time left to serve on their term. Six judges were required for a quorum and five votes were required for a decision. The Chief Judge was one of the state-wide elected judges, the one who had the shortest time left to serve. So it is seen that the eight judges on the Court was derived from balancing the four state-wide permanent judges with the four short-term supreme court justices. While it was assumed that judges with the most judicial experience would be better qualified than others to sit on the Court of Appeals, it was also provided that one of the short-term judges had to leave every year.

The new Court of Appeals started off with 1,500 cases and was four years behind by 1865. By the time of the Convention of 1867, it was apparent that the 1846 framework was not working. The Court was backlogged. The constant turnover deprived the Court of the elements of permanence and stability necessary to a court of last resort. The constant changes also made its decisions uncertain and conflicting. It was said that, in practice, it took almost six months for a Supreme Court Justice who just joined the Court of Appeals to work efficiently with the other members and just as this efficiency was achieved, these Supreme Court Justices were obliged to retire in favor of new members recruited from the Supreme Court. Within the first 23 years of the court's existence, a total of 123 judges had sat on it. A variety of proposals were considered: one suggestion was a court of nine members; another was for a court of seven; and there was a suggestion for a court of ten judges. What emerged is what we have today—a Court of Appeals consisting of a Chief Judge and six associate judges. (Today's Court of Appeals Judges, while still selected from the state at-large, are appointed, rather than elected—a change made by constitutional amendment in 1977.)

But this was not entirely the end of the matter. So that the reconstituted Court could start off with a clean slate, the four permanent members of the old Court of Appeals, plus a fifth appointed by the Governor, were designated to serve as a Commission on Appeals to complete the work left behind by the old Court. It took them five years to do it, finally going out of business in 1875. Thus, in effect, we had two highest courts in New York for a period of five years, one consisting of seven judges and another consisting of five judges, for a total of 12.

By 1890, there were serious backlogs in the Court of Appeals and measures were considered as to how best to deal with them. In 1888, a second division of the Court of Appeals was created, consisting of Supreme Court Justices designated by the Governor. The Second Division, consisting of seven judges (including one designated by the colleagues as chief judge) was in operation from 1889 to 1892, when it finished its allotted work. During its tenure, the Second Division received and disposed of 1,593 cases.

During this time, there were continuing efforts to address appellate structure in New York. In 1890, the Legislature created a special commission to focus on reforms to the judiciary article and which was specifically limited to that purpose. While the Commission's recommendations were not wholly adopted, they did have a remarkable impact on, and guided, later developments. The Commission found that there were two functions of an appellate court: (a) to apply common and statutory law to a particular case and correct errors of the lower courts; and (b) decide new questions of law and lay down rules to guide the court in future cases. The Commission held that in theory the great majority of litigation should not proceed past an intermediate appellate court. It opposed the creation of divisions or commissions of the Court of Appeals. Its recommendation was to enlarge the composition of the General Terms, which then served as an intermediate appellate court, from panels of three to panels of five and to limit the jurisdiction of the Court of Appeals.

The Legislature did not favor this approach. In 1890 and 1891, it adopted a resolution that called for a Court of Appeals to consist of a Chief Judge and 14 associate judges, with the existing Chief Judge and associates to remain as well until their terms expired. This did not pass.

Another State Constitutional Convention was held in 1894. The leader in the Judiciary Committee of the Convention and of the Convention as a whole was Elihu Root, a leading lawyer whose law practice evolved into the Winthrop Stimson law firm and who later served as U.S. Attorney for the Southern District of New York, as Secretary of War, Secretary of State, and United States Senator. He became the President of the Carnegie Endowment for International Peace in 1910 and was awarded the Nobel Peace Prize in 1912.

Root managed the reforms to the Court of Appeals, and the birth of the Appellate Division with skill, finesse and tact, overcoming objections to what seemed to some radical changes he was proposing for New York's appellate courts. Because of the history of backlogs, there was a proposal to have a Court of Appeals of 14 judges, with two divisions of seven sitting simultaneously. Root argued that these proposals would destroy the unity of the Court and prevent it from being the expounder of a consistent and harmonious system of law. The Convention decided against having the Court of Appeals sit in divisions or with a supplemental commission. The 1894 Convention decided to control the docket of the Court of Appeals by limiting its jurisdiction, while simultaneously augmenting the provisions for an intermediate appellate court.

The issue of the numerical composition of the Court of Appeals was, however, revisited a bit in 1899 by the adoption of a constitutional amendment which permits the Governor, upon certification of the Court of Appeals that it is unable to hear and dispose of its cases with reasonable speed, to designate up to four Supreme Court Justices to sit as associate judges of the Court of Appeals until the Court certifies that these additional judges are no longer needed. This provision continues today but has not been used since 1921. When it was used, shortly after it was adopted, no more than three additional judges were ever appointed, though the Court fell slowly behind it in its work. It is surmised that the Court perceived that it could dispose of as much business with 10 judges as it could with 11.

With the limitation on the Court of Appeals' jurisdiction came the advent of a strong intermediate appellate court. From New York's first state constitution, Supreme Court Justices acted as both trial judges and as a court of review. By the 1821 Constitution, there was a Chief Justice and two associate justices, and eight circuits with a circuit judge in each. Appeals from the circuit courts went to the Chancellor in equity cases and to the Supreme Court or the Court for the Correction of Errors in other cases. The 1846 Constitution provided for eight General Terms of the Supreme Court, one for each of the eight judicial districts. Each General Term consisted of a presiding justice and two associate justices. Based on the theory that the judges should remain close to the people, the General Term Justices did trial as well as appellate work, including appellate review of their own decisions. There is no positive evidence as to why the General Term sat in panels of three. One answer could be that the early constitutions provided for only three Supreme Court Justices. Another possible answer is that by 1846 there were 32 Justices for the entire state, then comprising a population of 3 million. Since there were eight General Terms of three justices each, 24 out of the 32 justices (75%) of the Justices sat on the General Term. If panels of four had been chosen, every Justice would have sat on the General Term and panels of five would have been a numerical impossibility.

The existence of eight intermediate appellate courts, with judges sitting in review of their own decisions, posed "distinct evils" to the administration of justice. In 1869, the Constitution was amended for the purpose of streamlining the intermediate appellate courts. Four Departments were created, each with a General Term consisting of a presiding justice and not more than four associate justices. Justices could do other judicial work, such as serve on the trial courts, but could no longer sit in review of their own decisions. While the number of General Terms was cut in half, it was still required that sittings of General Term be held in each of the eight judicial districts. Further, Justices of one General Term were permitted to serve on the other three General Terms. Of some interest, a proposal to allow periodic meetings of the four presiding justices to review conflicting procedural decisions did not make its way into the 1869 Constitution. A Fifth Department was created by constitutional amendment in 1881.

In addition to the five Supreme Court General Terms, there were four General Terms with appellate functions in the New York County Court of Common Pleas and three superior city courts, for a total of nine intermediate appellate courts, which had overlapping jurisdiction and often had diverse legal opinions.

The 1894 Constitution attacked this problem by creating a stronger, unified intermediate appellate court, to be called the Appellate Division, as General Term had become a meaningless expression. The Appellate Division was conceived of a single-state wide court, albeit sitting in four geographic departments. The Appellate Division's decisions were to be final in a greater range of cases; its members were to have fixed terms; to our present purpose, it was to be "large enough to insure full discussion and the correction of individual opinions by the process of reaching a consensus of opinion"; and, lastly, the members of the Appellate Division were to be relieved of all other judicial duties so that "there shall be the fullest opportunity for consultation and deliberation" undisturbed by the demands of circuit and special term assignments, and so no litigant shall be obligated to argue his appeal before a court of which the judge from whom he appeals is a member". It was predicted that, as a result of these changes, the Appellate Division would be less frequently reversed than the General Term had been and there would be fewer appeals to the Court of Appeals. It was also recognized that the more Justices taken out of the Supreme Court for Appellate Division work, which would now be full-time, the fewer left to handle the trial court work.

Root designed the Appellate Division to be a unit, with not more than five justices to sit on any one case in a given Department. It was the Appellate Division sitting in a given department, not an independent Appellate Division in each Department, just as there is one Supreme Court sitting in many counties.

Root proposed that there be seven justices in the First Department and five in the rest. As for the five, that was an increase over the three in the General Term and Root proposed it on the theory that five would have to consult. He said that "though five judges will not do any more work than three, they will do better work and better-respected work". As for the seven in the First Department, that was due to the press of business in the First Department. Root explained:

The idea is, that the court sitting in the first department shall be just the same kind of a court, with just the same number as the courts in each other department. But in the first department, the court is obliged to sit continuously from the first of October until the end of June, for nine solid months, and it is not within human power to do effective judicial work sitting all that time. The object of the addition of two justices is that they may serve in relays, relieving each other, and having all the time a court of the same size, an expedient, which we thought unobjectionable in a court, the prime object of which was to pass upon the particular rights of litigants, although very objectionable in a court which was designed to maintain a harmonious and consistent system of law.

As is evident, it was not intended that the seven judges in the First Department sit together as one panel; rather the extra two judges were provided in order to enable the court to handle its docket, sitting in panels of five. While there appears to have been little discussion about it, the quorum requirement of four was designed to allow for a justice to be absent, whether due to illness or travel or other cause. While provision was made for a temporary appointment in case of illness or absence, the quorum of four was protection against the prospect, particularly in the Second, Third and Fourth Departments where there were only five justices to begin with, of a sudden and unanticipated illness or absence on the part of one justice.

There were some who thought the prohibition against Appellate Division justices doing trial court work was unwise because "it was very doubtful whether four general terms of five justices each would find enough work to do if they were limited to appellate work". That concern has certainly proven to be ill-founded. There also was a perceived danger that a court devoted only to hearing appeals would get out of touch with trial work and become theoretical. These concerns about appellate judges becoming theorists was addressed by pointing to the five-year term, after which judges would return to the trial bench. The five-year term only applies to constitutional justices and, at least over the past several decades, the appointing authority has almost always reappointed eligible justices who wished to continue serving on the Appellate Division. Those justices who serve as "additional justices" do not have a set term; rather, they serve as long as they are needed. However, when an additional justice serves long enough to be appointed a constitutional justice, then that justice is subject to the five-year term.

In the constitutional reform, provision was made for the transfer of cases from one Appellate Division to another. This provision continues today. A majority of the presiding justices, at a meeting called by the presiding justice of the department in arrears, may transfer appeals from one department to another. The Constitution also permits the temporary assignment of a justice from his or her home department to another department, upon the agreement of the presiding justices of the affected departments.

Following the 1884 Convention, a couple of changes of significance occurred. In 1899, a constitutional amendment gave the Governor the ability to designate, upon a certificate of need, additional justices to the Appellate Division. While there had been a provision for such appointments in the case of absence or inability, the 1899 amendment permitted additional justices due to calendar conditions. A 1905 amendment allowed Appellate Division justices to be used as trial justices outside of their home Department when their services were needed. In 1925, the composition of the Second Department was enlarged to seven, to match that of the First Department; the number of permanent positions in the Third and Fourth Departments stayed at five.

These provisions have remained essentially unchanged ever since. The First Department was originally the department with the heaviest caseload. According to a report from the Judiciary Committee to the 1921 Constitutional Convention, in 1920, the First Department had decided more than 1,500 cases, and 840 motions; the other Departments had case loads of less than one-half of that. The 1921 Constitutional Convention recommended a provision that would have allowed, but not required the First Department to sit in two parts. This was not enacted.

So this is how we got here. From this history, some conclusions can be drawn, which will be discussed in the second part of this article.

Alan D. Scheinkman is Presiding Justice of the Appellate Division, Second Department. This article is an adaption of an oral presentation given at the 2019 New York State Appellate Judges Seminar on July 9, 2019.