The Practical and Historical Rationales for the “Supreme Court of Maryland” with “Justices”
By Michael Wein[*]
The title “Supreme Court” today seems like a natural and organic name to call the highest appellate court in a State. An historical refresher of the name helps explain why Maryland did not originally call its High Court the “Supreme Court of Maryland.” That is, until the recent Constitutional Amendment was approved by Maryland voters and officially adopted on December 14, 2022.
When the United States was founded, Colonial appellate courts previously existed, tracing to at least the 1600s, well before the United States Supreme Court. The “United States Supreme Court,” as a title, was developed as part of the United States Constitution drafted in 1787 and Congress’ 1789 Judiciary Act. The first “Session” with Supreme Court Justices later began in 1790. See Dallas Reports of Cases Ruled and Adjudged in the Several Courts of United States and of Pennsylvania, Vol. II, 1798, Pg. 399.
Maryland, Virginia, Pennsylvania, and the Massachusetts colonies were the first American colonies with defined appellate courts, though functioned a bit differently than today. For example, when Maryland was ready to join the United States proper, as the 7th Admittee to the Union, the Maryland colony changed the Court’s name, as well, from the “Provincial” Court to the “Court of Appeals of Maryland,” as part of Maryland’s 1776 Constitution. Maryland’s original appellate courts were titled as the “Provincial” appellate court and arguably began with a law passed in 1637 or 1638, though weren’t established before about 1642, with further changes enacted in the 1660s and 1690s. See, e.g., Wilson v. Simms, 380 Md. 206, 220 (2004) (J. Battaglia, discussing Maryland’s appellate court history, which included the then-nascent province of Maryland establishing a system of oversight with a mixture of executive and judicial functions, including appellate jurisdiction, which mirrored the Common Law system of England); see also The Maryland Court of Appeals-A Bibliography of Its History, 1987 (Compiled by Michael S. Miller, Director, Maryland State Law Library); The Court of Appeals of Maryland, A History, Bond, Carroll T. (Chief Judge of the Court), Baltimore, (1928), pg. 1.
Maryland had a similar procedure to the one which evolved in Virginia’s appellate courts, which began with “Quarter Court” to “General Court” and in 1779 as part of Virginia’s ratified state Constitution, became the “Court of Appeals of Virginia.”
Where things differed with Maryland was, when Virginia determined to create an intermediate appellate Court, they didn’t hesitate, and the voters approved in 1971, to change the name of Virginia’s High Court to the “Supreme Court of Virginia.” Id. Ironically, the creation of the intermediate appellate court didn’t happen for another 15 years, and so in 1985, the “Court of Appeals of Virginia” began concentrating mostly on criminal appeals. Id. But, by that time, and a 15-year gap to get used to the name change, the Virginia Legislature decided to simply adopt the naming model of nearly all other states, with the high court titled similar to the “Supreme Court” and the intermediate court as “Court of Appeals.”
Thus, Maryland and other colonies preceded the United States Supreme Court’s creation. It was not at all obvious that the word “Supreme,” an adjective to highlight it was the State’s “High Court,” was necessary. This is especially when, for over two centuries, most appellate courts were the only “Court of Appeals.” It was not until the 1960s when most States, out of necessity, established “intermediate” appellate courts to deal with the increased caseload from criminal appeals, including the expansion of incorporated Federal Constitutional rights.
Other States, however, already used a “Supreme” moniker for their Colonial appellate Courts, and so didn’t need a name change. For example, Pennsylvania’s high appellate Court has been, since 1722, the “Supreme Court of Pennsylvania,” as part of the Judiciary Act of 1722. See also Dallas Reports, supra.
Massachusetts, after adopting different-named early appellate Courts in Massachusetts Bay Colony and the Plymouth Colony, eventually adopted in 1780 the “Supreme Judicial Court of Massachusetts.” This was somewhat updating the naming convention from the 1690s of “Superior Court of Judicature.” The present name remains the Massachusetts Supreme Judicial Court.
The United States Supreme Court wasn’t necessarily going to be called that, under the actual wording of United States Constitution. A review of the text finds the Constitution reads, when referencing Article III, “Judges of the supreme Court.” [Emphasis as Shown] Supreme was an adjective that was not capitalized and separated itself from “inferior” Article III courts that would not be appellate-based. It was ultimately likely the title “Supreme Court” would be used, but it was not set in stone in 1787. It wasn’t until 1789, with the Judiciary Act, that the official “United States Supreme Court” was established, adopting the similar naming convention of Pennsylvania since 1722 and recently adopted Massachusetts “Supreme Judicial Court.” Additionally, rather than calling themselves “judges,” the Judiciary Act of 1789 explicitly adopted the moniker of “justices” for the then-6 Members of the original Supreme Court. (Having an odd number of appellate Court judges, which would reduce “ties,” was also something not set in stone in the original Constitution.)
Which leads to the problems of today of Maryland’s appellate courts, and why a legislative push finally succeeded in 2022 to have the name change go before the Maryland voters, which was overwhelmingly approved. When the “United States Supreme Court” was named, there were two tracks. One was a “Court of Appeals,” like in the early colonies of Maryland and Virginia. However, the second was, as used by Pennsylvania since 1722 and similar to Massachusetts’ adoption nine years earlier, calling them the “[S]upreme Court.” When the United States adopted it in the Judiciary Act, the trend for all new states was to go and become the “Supreme Court of [Insert State].” After 200 years, Maryland was one of only two States that did not have a clear description of their High appellate Court, as the “Supreme” Court based on name alone, the other being New York. (New York, it should be noted, in this circumstance, is detached from reason, with their trial courts called the “Supreme Court,” intermediate appellate court called “Appellate Division of the Supreme Court” and New York’s High Court called, similar to Maryland’s history, the “Court of Appeals of New York.”)
Worse still, Maryland’s logical, and historically accurate name of “Court of Appeals,” had become confusing and outdated, when considered in concert with all other States, except New York. This confusion is unfortunate, since Maryland’s formerly named Court of Appeals has a storied history tracing from 1776, and which may be the oldest continuous appellate Court still operating in the United States since about 1637. However, no longer could it be ignored, and it is particularly confusing when reviewed nationwide, that at least forty (40) out of the fifty (50) state intermediate appellate courts use the naming convention of “[State] Court of Appeals.”
In other words, virtually every other state has supplanted, appropriated, and/or adopted the naming convention used by Maryland, for almost 250 years, and uses it to describe their intermediate appellate court. This means all attorneys and prospective attorney law school graduates, throughout the United States, would naturally get confused on the nomenclature of Maryland, and misread what is appellate precedent from Maryland’s high “Court of Appeals” as being from the intermediate appellate Court.[1] This, unfortunately, leads to confusion throughout the United States, and would continue to adversely affect Maryland’s precedent being understood and put into context in virtually all other jurisdictions.
In addition to changing the “title” in Maryland to the “Supreme Court,” with the voters’ approval, the title of gubernatorially-appointed high court judges has been updated from “Judge” to “Justice.” This, again, is consistent with nearly all other present American courts. My review of all State Supreme Courts, however named, finds only three States (Maryland, Missouri, and New York), who referred to their highest appellate Court members as “Judges.” Forty-seven States call them “Justices.” The District of Columbia, which shares a link with Maryland’s common law, still calls them “Judge” but all other American territories, American Samoa, United States Virgin Islands, Guam, and Puerto Rico, call them “Justice.”
So, while there’s arguably room and time to genuflect on the ultimate wisdom of the name change, the main reasons are practical and forward-thinking. Over 200 years of historical evolution forced a change in Maryland, very much similar to how Virginia dealt with the concern back in 1971 and ultimately changed their name.
Chief Judge Robert Bell occasionally was addressed by counsel who would call him at the start of arguments “Mr. Chief Justice,” like in the United States Supreme Court. Chief Judge Bell would remark with a line like “[t]here is no Justice [capitalized] in Maryland.” Amusing and perhaps a double entendre, but it corrected the attorney, who would remember to use the correct term in the future. Similarly, expect friendly reminders from the newly named Maryland Supreme Court (formerly Court of Appeals) and the newly named “Appellate Court of Maryland” (formerly Court of Special Appeals) in all their correspondences, and decisions. I would expect this “confusion” surrounding the naming issue, a necessary though unfortunate correction caused by over 200 years of history making it “confusing” to those outside Maryland, will sort itself out within a year.
[1] This Blog Post, does not focus upon a different historicity and “times they are a-changing” concern, that the prominence and reputational concerns for the Maryland state appellate courts, have changed in the past 250 years. For example, in the late 1700s, there were prominent judges from Maryland in the same Court. William Paca was Chief Judge, along with Robert Hanson Harrison, who rejected a United States Supreme Court appointment due to failing health. Later Judges appointed included future Supreme Court Justices Thomas Johnson (Maryland’s First Governor), Samuel Chase, and Gabriel Duvall. However, all five of these highly prominent and noteworthy judges, who today have streets and schools named after them, were not in the Maryland Court of Appeals, whose judges and names are mostly unrecognizable today. Instead, Paca, Harrison, Johnson, Chase and Duvall, were judges in the Maryland General Court, which handled trial court matters throughout the State of Maryland. See Maryland Reports a Series of the Most Important Law Cases in the General Court and Court of Appeals of the State of Maryland From May 1780 to May 1790, Harris Thomas and John McHenry, New York, 1812. Thus, at that time, the highest judges in the State, generally desired to become part of the General Court of Maryland (essentially the Circuit Courts of today), not the Court of Appeals (now the Supreme Court of Maryland). Additionally, until the 1850s, all matters of Equity were handled by the High Chancellor of Maryland, who had significant power in appointments of Justices of the Peace, prior to the Courts of Law and Equity being combined, in Maryland, as had just happened in England’s Common Law.
[*] Michael Wein is an attorney in Greenbelt whose practice concentrates on appellate, civil, and criminal litigation, and is chair of the Prince George’s County Appellate Practice section, and can be reached at weinlaw@hotmail.com. An earlier version of this Blog Post was printed in the Prince George’s County Bar Association News Journal.
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