Connecticut Supreme Court History
Volume I (2006)

THE HISTORY OF THE CONNECTICUT SUPREME COURT:  AN OVERVIEW

The Honorable Ellen Ash Peters
Former Chief Justice of the Supreme Court of Connecticut and former Southmayd Professor, Yale Law School 

(This essay was first presented in the courtroom of the Connecticut Supreme Court at the initial public meeting of the Connecticut Supreme Court Historical Society on October 3, 2005.) 

As we meet in this spectacular courtroom, we are reminded of the generations of lawyers who have argued their cases here and the judges who have decided the merits of the controversies that have been heard and decided here. But this is not where our judicial history began. 

For the purpose of my brief overview, our judicial history has three parts, the period before the constitution of 1818, the period between that constitution and the constitution of 1965, and the modern period of the last forty years. At the beginning, there was no supreme court at all, then there was a Supreme Court of Errors and now, at last, we have a Supreme Court (with no errors). 

Connecticut's judicial history predates the history of the creation and enforcement of the provisions of our federal constitution. In 1639, the so-called Fundamental Orders created a legislative body called the General Court which had the authority not only “to make laws or repeal them” but also “to call any person whatsoever into question for any misdemeanor.” A few years later, a royal charter memorialized the creation of a governmental structure and incorporated a guarantee of liberties and immunities. 

Apparently Connecticut courts enforced these rights, relying upon statutory enactments as well as the common law. Their opinions were not, however, officially published until Judge Jesse Root began to collect them in 1789. His introduction to the volume of the reports that bear his name speaks pointedly to the importance of building a Connecticut common law jurisprudence based on the decisions of “our courts,” so as to create a system of jurisprudence “purely American” “without any marks of servility to foreign powers or states.” 

At that time, the highest court was the upper house of the General Assembly. Trial court judges were no happier to be reversed by that tribunal than they are to be reversed today by this Supreme Court. In any event, one highly controversial reversal, which led not only to a reversal but also to an order for a new trial, is said to have been one reason for the adoption of the constitution of 1818. That constitution created a state supreme court as well as lower courts, each protected from direct legislative review according to the principle of separation of powers. 

I will defer to Wesley Horton for a description of how the so-called Supreme Court of Errors resolved the major controversies that came before that court for the next hundred fifty years. Let me note only that, at least in the early years, the court readily incorporated pre-1818 jurisprudence into the constitutional principles of due process that the then new constitution articulated. Parenthetically, Connecticut did not ratify the federal bill of rights until 1939. 

Let me turn, instead, to the recent history of the modern Connecticut Supreme Court. Since 1965, the Court itself has grown from five to seven members. For more than twenty years, it has shared the responsibilities for appellate review with the nine-member Appellate Court. Uniquely, the two courts share their case load - almost any case can be transferred from one court to the other. 

Judicial disagreement about separation of powers as classically defined has largely been muted in the cases that have recently been heard. There was, of course, State v. Clemente (1974), about rule-making, but it was the exception that, proverbially, proves the rule. It is fair to say that constitutional issues raised by the death penalty and the never-ending war on drugs have been at least as difficult to resolve. 

As Justice Peter Zarella and Judge Thomas Bishop have recently observed, our court system must also maintain vigilance in protecting core judicial values from administrative intrusion. The chief justice is not only the judicial leader of our state but also serves as executive officer of the entire judicial system. With the assistance of the chief court administrator, the chief justice has responsibility for a broad range of administrative services ranking from court operations to technology to programs for alternatives to incarceration. These programs were in their infancy when I joined the court in 1978. I personally am grateful for the technology so that I no longer have to read draft opinions as memorialized on the last carbon copy. As chief justice, I recognized that the legislature has welcomed the judiciary's willingness to enlarge its responsibilities to undertake innovative programs like the community court and the drug court.  

The fact remains, however, that many administrative undertakings do not lend themselves to the corrective force of judicial review. The choices that are presented by drug courts and alternatives to incarceration focus on rehabilitation rather than on guilt or innocence. Arguably, plea bargaining is similarly problematic.

Defining the role of courts in an administrative state is likely to be an important challenge for our judiciary. Administrative law elsewhere has underscored the difficulty of effective regulation of any kind of complex undertakings. It is my hope that a historical society for the Connecticut Supreme Court will help our judicial system to look forward as well as backwards.

Connecticut Supreme Court History, Vol. I | Publications