Supreme Court of Pennsylvania
Historical Commission
Est. 2023
“all courts shall be open, and justice shall neither be sold, denied nor delayed”
Frame of Government of Pennsylvania and Laws Agreed Upon in England (May 5, 1682)
Courts of the European Settlers Prior to William Penn
William Penn did not create the first European-styled courts in Pennsylvania. Beginning in 1638 and continuing until 1664, the Swedish colonists and Dutch colonists established control in the tidewater areas of what is now the State of Delaware, southern New Jersey, and southeastern Pennsylvania. The Dutch established their own courts, with schepens (justices) having civil and criminal jurisdiction, and appeals to the director general and council of New Netherlands were allowed for criminal cases or judgments larger than 100 guilders.
When England took control of New Netherland in 1664, English authority replaced that of the Dutch in the Delaware Valley. The English courts initially incorporated both aspects of the existing Dutch courts and practices from the New England colonies. In 1676, the Duke of York gave more exact instruction on the courts’ jurisdiction, frequency, and fees. Again, appeals stayed relatively local, as they went to New York.
Mural of William Penn painted by Edward Trumbull in the Supreme Court's Courtroom in Pittsburgh
The 1670 Trial of William Penn in England
William Penn’s experience as a defendant in the English courts likely influenced his views on the entire English system of law. In 1670, Penn and William Mead, both Quakers, were arrested after attending a meeting for worship. Penn demanded to know the law under which he was charged, to which the court vaguely responded the “common law.” Despite direction from the court and threats from court and mayor, the jury found Penn and Mead not guilty. The infuriated court fined and imprisoned the jury, Penn, and Mead.
Mural of William Penn in solitude painted by Violet Oakley in the Supreme Court's Courtroom in Harrisburg
Penn’s “Holy Experiment”
Several quotes from William Penn painted in the Capitol Rotunda leading to the Supreme Court's Harrisburg Courtroom.
"There may be room there for such a holy experiment."
"For the nations want a precedent."
"And my God will make it the seed of a nation."
"That an example may be set up to the nations."
"That we may do the thing that is truly wise and just."
In the 1681 Charter for the Province of Pennsylvania, Charles II granted Penn the power “to doe all and every other thing and things, which unto the compleate Establishment of Justice, unto Courts and Tribunalls, formes of Judicature, and manner of Proceedings doe belong…, And by Judges by them delegated, to award Processe, hold Pleas, and determine in all the said Courts and Tribunalls all Actions, Suits, and Causes whatsoever, as well Criminall as Civill, Personall, reall and mixt.”
Penn lost little time in formulating a new government. Penn saw Pennsylvania as an opportunity to create a very different social construct, as he described in a 1681 letter to James Harrison (who later would become a judge in the colony):
“[t]hat an example may be set up to the nations; there may be room there, though not here, for such an holy experiment.”
Penn’s 1682 Frame of Government and Laws Agreed Upon in England reflected his utopian hopes. In Pennsylvania courts, parties would plead cases themselves, or be represented by friends. Judges would be nominated by an elected provincial Council and approved by the governor, and Penn allowed himself the power to nominate and appoint judges, who would be allowed to hold their office “for so long time as every such person shall well behave himself in the office…and no longer”.
But vision and practice soon ran afoul of one another. In the following forty years, the Pennsylvania colonists, through their General Assembly, repeatedly passed laws to create and improve their courts, and the Crown repeatedly disallowed them.
Pennsylvania courts in disarray – but moving toward a final form
As indicated by the numerous acts the General Assembly passed in the span of thirty years – and their subsequent disallowances – Pennsylvania courts’ powers and structures remained in flux throughout the 17th and early 18th centuries. The courts became caught up in political clashes and rivalries between the legislature and the governor, between the colonists and Penn, between Anglicans and Quakers, and between the lower counties (now Delaware) and the rest of the colony. Adding to the disarray was the difficulty in finding suitable justices, as few people had the needed training, compensation was low, and riding circuit (hearing cases in outlying counties) was time-consuming.
This tumult had its benefits, however. Out of the frequent debates and court changes emerged a growing consensus that a supreme court with clearly-defined powers was the key to a functioning judiciary.
A milestone in the Pennsylvania judiciary’s development
“That there shall be holden and kept … a court of record …which said court shall be called and styled the Supream Court of Pennsylvania.”
1722 Judiciary Act Sec. VI
Although several earlier acts passed by Pennsylvania’s General Assembly created a Supreme Court for Pennsylvania, the British Crown disallowed each of them. The 1722 Judiciary Act, though incorporating many elements from earlier acts, was the first to pass this hurdle. As a result, the Supreme Court of Pennsylvania marks its anniversary as a permanent judicial body from the 1722 Act.
First page of Judiciary Act of 1722
Source: Judicial Act of 1722, May 22, 1722. Engrossed Laws, 1700-1853 (Series #26.57); RG-26, Department of State; Bureau of Commissions, Elections, and Legislation. Pennsylvania State Archives, Harrisburg.
Political maneuvers and personal rivalries
David Lloyd was instrumental in assuring passage of the 1722 Judiciary Act. Lloyd had been appointed Chief Justice in 1718 and simultaneously served in the Pennsylvania General Assembly as Speaker of the House. He thus had a vested interested in passing the Judiciary Act of May 22, 1722.
Acts passed by Pennsylvania’s General Assembly had to be submitted to the Crown for approval, however, a hurdle that proved the downfall of previous acts attempting to establish a Pennsylvania judiciary. Acts needed to be submitted to the Crown within five years of passage, and the Crown had six months to approve or disapprove them.
It remains a mystery why the Board of Trade, an English government entity overseeing English colonies, did not always fulfill its obligation to present colonial laws to the Crown for approval in a timely manner: an agent for Pennsylvania stated he found some acts “laid up in a by corner of the Broad of Trade and covered very thick with dust.” This group of acts likely included the 1722 Act, which appeared in a list the Board of Trade considered in 1739, and which the Board did not find to have been approved. This conclusion has been confirmed by legal scholars.
In the meantime, the Judiciary Act of 1727 had been submitted, but it the Crown repealed it in 1731. As a result of the 1727 Act’s repeal, the 1722 Act was revived and became law due to the lapse of the Crown’s allotted approval time. Despite its singular history, the 1722 Act has stood the test of time.
David Lloyd
David Lloyd’s influence on early Pennsylvania law and courts cannot be understated. He was born in Wales and studied law in England, then provided legal counsel to William Penn regarding his Pennsylvania proprietorship.
Penn brought Lloyd to Pennsylvania to become its first Attorney General in 1686. Lloyd quickly became involved in Pennsylvania government. He first was elected to General Assembly in 1693 and was re-elected 22 more times, with a reputation as a voice against the proprietary (Penn and Penn’s heirs). Lloyd served as Speaker of the Assembly for 14 terms. Lloyd authored and influenced numerous acts, including the Judiciary Acts of 1701 and 1710.
Lloyd became Pennsylvania’s chief justice in 1718 while continuing to serve in the General Assembly. While not an author of the Judiciary Act of 1722, Lloyd’s political acumen and influence helped to assure its passage.
Sketch of David Lloyd. Artist Unknown.
What powers did the 1722 Judiciary Act give the Supreme Court?
The 1722 Judiciary Act established a Supreme Court that would be composed of three justices who had lifetime appointments. The Court combined appellate and trial functions, including King’s Bench jurisdiction, appellate functions, and jurisdiction over capital crimes. The 1722 Act, however, did preserve the right of appeal to the Crown or courts appointed to hear appeals from the colonies.
The Supreme Court of Pennsylvania’s broad jurisdiction thus fulfilled William Penn’s hopes for a court and, half a century later, became a model for a national Supreme Court, as envisioned in Article III of the United States Constitution.
A Revolutionary Constitution
The Pennsylvania Constitution of 1776 predated and influenced the Federal Constitution. The Pennsylvania Constitution, among others, guaranteed the right to a public trial, the right to bear arms, the right to be free from unreasonable searches and seizures, and freedom of religion, concepts that later would be found in the Federal Constitution’s Bill of Rights.
The 1776 Constitution also provided “fixed salaries” to Supreme Court justices, a protection against the legislature’s using compensation to reward or punish judicial actions. Together with its prohibition that judges “shall not be allowed to sit as members in the continental congress, executive council, or general assembly, nor to hold any other office civil or military, nor to take or receive fees or perquisites of any kind,” the 1776 Constitution provided the Commonwealth’s Supreme Court an unusual degree of independence.
The Supreme Court of Pennsylvania's courtroom in Independence Hall across from the Assembly room where the Declaration of Independence was signed.
Continuing Change
Over the next 200 years, Pennsylvania constitutions, constitutional amendments, and statutes changed the Commonwealth’s highest court in areas ranging from term length to the Court’s powers.
Milestones
1682
Frame of Government and Laws Agreed Upon in England
- Gave provincial council power to erect courts (with governor) and nominate judges, which governor approves
- Directed parties to plead cases themselves, or represented by friends
Voted down by Pennsylvania’s General Assembly
1684
Act passed by General Assembly
- 5 judges appointed by the proprietor (Penn), who would go on circuit into each county
- Hear and determine all appeals from the lower courts
- Hear all causes not determinable in the county courts
Disallowed by the Crown in 1693
1690
Act passed by General Assembly
Established judicial system including a provincial court
- 5 judges
- Hear appeals from county courts
Disallowed by the Crown in 1693
1701
Act passed by General Assembly
Comprehensive judicial reform, including Provincial Councils’ appellate function and renamed high court as Supreme Provincial Court
- 5 judges, appointed by the governor
- Courts were to follow “the methods and practice of the Kings court of common pleas in England”
Disallowed by the Crown in 1705
1706
Provincial Governor John Evans issued ordinance
Created Supreme Court
- High court consists of chief judge and 2 or more associates, which the governor could remove at his pleasure
- Would decide cases taken up on writs of habeas corpus, certiorari, or error
General Assembly balked but Governor and his successor assembled courts by proclamation
1710
General Assembly Bill
Created Supreme Court
- 4 judges appointed by the governor
- Returned criminal case responsibilities to the Supreme Court
Disallowed by the Crown in 1713
1715
General Assembly Act
Act for erecting a Supreme or Provincial Court of Law & Equity
- Jurisdiction in all matters that could be heard in other courts
- Had criminal case responsibilities and would handle capital cases
Disallowed by the Crown in 1719
1722
Act Passed by General Assembly
Created Supreme Court
Allowed by the lapse of the Crown’s allotted approval time
1727
Act Passed by General Assembly
Created Supreme Court
Disallowed by the Crown in 1731
1776 Constitution
Term length is seven years, but justices can be reappointed.
Fixed salaries instituted.
1790 Constitution
Justices have life terms (during good behavior)
Justices are appointed by the governor.
1799 - 1834 Various Acts
Circuit courts are created and abolished several times, finally ending in 1834 (thus ending the Supreme Court’s trial jurisdiction in civil matters, except in Philadelphia)
1835 Constitution
Term length decreased to 15 years
Justices “required to be learned in the law.”
Justices must receive adequate compensation, which cannot be diminished during the justice’s tenure.
1850
Constitutional Amendment
Justices are to be elected, not appointed.
1968 Constitution
Term decreased to 10 years, and justices can run for re-election
Judiciary reorganized into the Unified Judicial System, giving the Supreme Court general supervisory and administrative authority over the entire Pennsylvania judiciary and the power to promulgate rules of practice, procedure, and conduct.
Diversity on the Court
Anne X. Alpern, the first woman to serve on the Supreme Court of Pennsylvania, was appointed in 1961 by Governor David L. Lawrence. This was only one of Alpern’s many firsts – she was the first woman to serve as a city solicitor for a large U.S. city (Pittsburgh) and the first woman to serve as a state attorney general.
Anne X. Alpern and her daughter, Marsha, at Alpern's swearing in in the Senate Chamber in Harrisburg.
Robert N.C. Nix, Jr., first appointed in 1971, then elected in 1972, was the first Black justice to serve on the Supreme Court. In 1984, he became Chief Justice, the first Black Chief Justice of any state's high court.
Juanita Kidd Stout was the first Black woman to serve as a justice on the Supreme Court of Pennsylvania – and the first to serve as a justice of any high court in the United States. She was appointed to the Court in 1988 and served for a year before reaching the court’s mandatory retirement age.
Debra Todd became only the second woman elected to the Supreme Court and became the Court's first female Chief Justice in the Court's history.
Chief Justice Todd with her husband, Steve, and daughter, Alexandra. Justice Christine L. Donohue administering the oath of office in Pittsburgh on January 20, 2023.
The Supreme Court of Pennsylvania Today
About the Pa. Supreme Court Justices
The Court has consisted, since 1874, of seven elected justices (each of whom must be an attorney), who serve staggered ten-year terms. Justices may run for re-election in retention elections, in which voters decide whether to retain the justice with a simple “yes” or “no” vote. Justices serve up to age 75. The justice with the longest continuous service on the Court automatically becomes Chief Justice.
The Court’s Duties
The Supreme Court’s current role in the state’s legal system has become more formalized, particularly with the 1968 Constitution’s creation of the Unified Judicial System and its extension of the Court’s power to regulate lawyers’ practice.
In addition to supervising the entire Pennsylvania Unified Judicial System, the Court also makes procedural rules for the administration of justice in the courts and regulates the practice of law, including admission to the bar and attorney discipline.
Cases Considered by the Court
The Pa. Supreme Court receives and considers over 2,000 requests for review annually.
These appeals primarily advance from the Commonwealth and Superior Courts, however in some circumstances such as cases involving the death penalty, the case is given an automatic appeal from the Common Pleas Court.
The Court can also consider any case pending in a lower court which members of the Court deem to be of immediate public importance. At its own discretion, the Court will grant an appeal upon approval of a majority of the justices who will review briefs and then hear oral arguments.
Following review of the case, Justices will write opinions.
Majority opinion: shared by more than half the Court and becomes the Court’s decision
Dissenting opinions: opinions that disagree with the disposition of the case
Concurring opinions: agree with the result but not necessarily the rationale