N.J. Constitutional Convention: Vol. 4, Page 6

Tuesday, June 24, 1947 (Morning session)

The Supreme Court

set up by our Constitution. The question you are met with is not whether there should be a change, but what change there should be.

There is wide agreement on all sides that our top court should be, not a court of 16 men as it is now, but a court of five or seven men, or I may say even nine, and that the members of the court should be required by the Constitution to devote their full time to the business of this court and not undertake, as they each do now, assignments outside of the court. In 1942 the Revision Commission designated this court the Supreme Court and constituted it a court of seven members - a Chief Justice and six Associate Justices. Our present huge court of 16 men is unique in the English-speaking world. One State Senator, in a remark now classic, has described it as "little larger than a jury, little less than a mob." In 1846, according to the reports, seven cases came before the Court of Errors and Appeals, then a court of 12 men; in 1946, 190 cases were listed in the printed lists of that court. As adequate as such a court may have been in the leisurely days of 1844 when our Constitution was adopted, it has no place in our age.

There should be some constitutional device to keep the top court abreast of its work. The Commission proposed that whenever the Supreme Court

  • (a) should fail to hear a case within two months after an appeal was perfected, or  
  • (b) should fail to decide a case within two months after it had been heard,  
the Chief Justice of the court was obliged to certify that fact to the Governor. Thereupon the Governor might, if he saw fit, appoint at least five Justices of the Superior Court to sit as a Special Term of the Supreme Court and exercise concurrently the jurisdiction of the Supreme Court until the delay was cured. This was an attempt to reduce to more solid terms the proposed amendment to the Constitution made in 1909 (Laws of 1909, page 379) which was passed by two Legislatures but rejected by the people. Under the 1909 proposal, whenever the top court could not "promptly" pass upon the causes before it, the Governor was obliged, if authorized by statute, to call up a bench of five Justices from the trial divisions to exercise concurrently the jurisdiction of the court for a temporary period. It was the view of the Revision Commission that such a provision as that advanced by it in 1942 was necessary to assure prompt hearings on appeal.

Appellate Divisions and Appeals

Below the Supreme Court, the Commission on Revision proposed to establish intermediate appellate tribunals called Appellate Divisions of the Superior Court. At least two Appellate Divisions were provided for, so that there would be at least one tribunal

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