Ben Pontz, a graduate of the Harvard Law School and a Law Clerk, United States District Court for the Western District of Kentucky, has posted Grounding Pennsylvania's King's Bench Jurisdiction, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:
Since 1722, the Supreme Court of Pennsylvania has had the power to “minister common justice to all persons ... as fully and amply to all intents and purposes whatsoever as the justices of the Court of King’s bench, common pleas and exchequer, at Westminster, may or can do.” For more than two centuries, that provision meant very little in practice; the power was seldom invoked and, when it was, the Court took pains to limit its scope. But beginning in the early twentieth century, that practice began to change. The Court instead began to treat this jurisdictional provision as license to take up any legal question—even if percolating nowhere in Pennsylvania’s lower courts—and resolve it on the merits, innovating procedure and remedies along the way. Specifically, the Court has used this King’s Bench jurisdiction to fill local judicial vacancies, amend tort-law statutes of limitations, exempt itself from the state open-meetings law, vacate scores of juvenile convictions, override statutory judicial-discipline proceedings, resolve various election disputes, and uphold Covid-19 emergency declarations.
The limited scholarly commentary on the King’s Bench jurisdiction—and the Court’s own (generally threadbare) analysis of the jurisdiction’s basis in law—has justified these invocations based largely on a single passage in which Blackstone described England’s Court of King’s Bench as “high and transcendent.” Some commentators and the Court have gone further, arguing that King’s Bench jurisdiction is inherent in the Court’s power—perhaps constitutional in nature, or perhaps even extraconstitutional, and in either case impervious to change by statute (or perhaps even constitutional amendment). This article argues that claims about the power’s scope are overstated and claims about the power’s origin are flatly wrong. If the King’s Bench jurisdictional provision is to be understood according to its text, the power is much narrower than the Court’s King’s Bench jurisprudence suggests. In short, the Court has mistaken a statutory heirloom for a constitutional crown.
This article thus traces the history of the King’s Bench provision to its 1722 origin, describes what power the English courts wielded as of that date, and assesses Pennsylvania’s King’s Bench jurisprudence against those boundaries. It also explores the possibility that, when the Pennsylvania legislature codified the King’s Bench power in state law most recently in the 1970s, it did so thinking that the power was more expansive than an objective view of the history would suggest. The article closes by considering the implications for originalist legal analysis of a subjective public understanding that departs from an objective historical meaning.
--Dan Ernst
