BOOKS NOVEMBER 17, 2011
The statement that “‘overwork’ requires a major change in the jurisdictional authority of the Supreme Court suffers from what Churchill used to call ‘terminological inexactitude,’” former Justice Arthur J. Goldberg said in these pages last week. A study group appointed by Chief Justice Burger and headed by Professor Paul Freund of Harvard recently found that the Court is overworked, and recommended relief. Justice Goldberg does not quarrel with the statistics cited by the study group. It is just that the work of examining the thousands of petitions for review that now come to the Court is not very difficult, Justice Goldberg maintains, since most of the petitions present cases that are clearly not worthy of Supreme Court review; and in any event the justices have law clerks to help them with the task, even though “every justice does his own work and makes his own decisions whether in passing on applications for certiorari or in deciding argued cases.”
Well, there are currently upward of 62,000 appealable decisions made annually in federal district courts throughout the country, an increase in the last seven years of over 100 percent in criminal matters decided, and over 50 percent in civil. Nearly 15,000 of these cases are then decided on appeal in the regional federal courts of appeal. Out of this mass of cases, plus a substantial body of additional decisions in the state courts, a number nearing 4,000 now finds its way to the Supreme Court of the United States. This number itself, incidentally, has grown from several hundred in the late 1920s. It has increased fourfold in the last 35 years, and threefold in the last 20, and there is no letup in sight. The Supreme Court picks some 150 cases, give or take a dozen, each year to hear and decide in plenary fashion. It tries to pick the ones that are of greatest importance from a national point of view. But somebody’s fate hangs in the balance in each of these nearly 4,000 cases and none of them should be regarded as trivial, even though very few can be decided by the Supreme Court. These 4,000 cases or so are self-selected, to be sure, but it takes considerable doing, and considerable expense, if one can afford it, to get up to the Supreme Court. Hence the 4,000 have to be regarded as something like the cream of the crop, and choice among them ought to be exercised with care.
As of the moment, some 70 cases arrive every week. At an average of half an hour a case, 70 cases would take half of a very heavy working week. At 15 minutes a case, two good working days. Some cases may take less time, and some may even be fit for disposition, as Justice Goldberg says, by a third-year law student, but even so, all must claim the attention of each of the nine justices, not of third-year law students, and we are talking about averages. There is staff help, to be sure, but as professor Freund remarked recently, when the late Justice Brandeis was asked how he explained the great prestige of the Court, he replied, “because we do our own work.” Astonishing as the phenomenon may appear in Washington, the justices have done their own work in the past, and do it now, and the burden is crushing. Justice Goldberg says he managed when he was on the Court. The volume of petitions then ran between 2,300 and 2,400 a year. There are better than 1,000 more now, and the justices still manage, but not, the study group surmised, without some inroads being made into their other tasks, chief among them, of course, deliberations and collegial consultation on argued cases, and the writing of opinions in them.
Justice Stewart told the Harvard Law Record a few weeks ago, says Justice Goldberg, that the case load is not intolerable and not impossible to handle. I think Justice Stewart chose his words —“intolerable,” “impossible”—with care, and I should certainly like to see the context in which that single remark was made. Justice Douglas took occasion in a recent dissent to say that the Supreme Court is underworked, and disposes of vast leisure time. Justice Douglas’ view is not unfamiliar. He has been on the Court for 34 years. He has double the experience of the next senior justice. And he is endowed with a singular capacity and willingness to do rapid work. People may be divided on the question whether it would be a good thing to have a Court of nine Douglases, but there can be no dispute that we do not have such a Court, and are not likely in the future to see one.
The new national court of appeals recommended by the study group to be established under the Supreme Court would initially examine the thousands of cases clamoring for attention, eliminate those that are least important, hear and decide some itself, and send the rest—which would be a manageable number, down again in the hundreds—to the Supreme Court, which would then finally choose the 150 or so to be heard and decided in plenary fashion. Now, when the Court is at saturation point, and more importantly in the future, when if nothing is done now the pressure will reach crisis proportions, this proposal would free the Court for performance of the great task which it alone can perform—the deliberate, reasoned, collegial declaration and elaboration of national law.
The proposal is workable. It would in itself hurt no one, and would help everyone as it helps the Court. There has been a gradual narrowing of access to the Court throughout history, as the country grew and the volume of business grew with it. That cannot be helped. It is a fact of life. This proposal takes the minimum possible measure necessary to cope with the continuing growth of business. It reforms in order to conserve. Of course, it makes a modest change in procedures that have been familiar for nearly half a century. But these procedures are no older than that; and they were in their turn resisted as strange and new when they were introduced. There is always a tendency, as the late Justice Frankfurter once said, to canonize the familiar into the eternal. That is perhaps natural, but it is unwise. By sticking with the familiar form in this instance, we will lose the substance, as one of our most precious institutions is gradually disabled from performing its historic function.
Justice Goldberg fears that various cases, particularly those involving rights of criminal defendants, in which in recent years the Supreme Court reexamined what had seemed to be settled law, will never reach the Court under the study group proposal. The national court of appeals, he suggests, when it examines a case of this sort, will see that the previous law is settled, will have no reason to believe that the Supreme Court is ready to reexamine it, and will therefore eliminate the case and not bring it to the Court’s attention at all. The fear is groundless. No one need worry that these experienced judges will not know that the Supreme Court sometimes reverses itself, sometimes upsets seemingly settled law, sometimes strikes out in new directions. They will know also, as the profession does now, that such events do not come altogether unexpectedly, out of the blue. As the study group, which considered this problem, said, “the Supreme Court’s readiness to reopen what had seemed to be settled issues, its impatience with, or its interest in, one or another category of cases—all this, we think, would be acted upon.” In not one of the major cases mentioned by Justice Goldberg can it be remotely imagined that the Supreme Court would not under the new, proposed system have had its opportunity to make the law it made.
Justice Goldberg also suggests that the proposal may violate the spirit or even the letter of the Constitution, which creates one Supreme Court, not one plus another to help it. But the argument rests on a word play. The history of the Supreme Court, naturally enough, has been the history of the progressive cutting down of its jurisdiction as the country grew, for it has always been true, as it is true now, that there is only so much that a single court can do. Congress, which is vested by the Constitution with the authority to regulate the jurisdiction of the Supreme Court, has regulated it throughout history so as to keep the docket at a manageable size by including and excluding whole categories of cases. Thus until 1891, there was no appeal to the Supreme Court in criminal cases, and then for a long time only in capital criminal cases. In all categories of excluded cases, the decision of a lower court was final, and in making such a final decision one could say, if one wished, that that lower court acted as a Supreme Court.
Congress also provided that certain cases came to the Supreme Court only if certified for appeal by the lower court which had decided them. That is precisely the function that the new national court of appeals will perform, and one could have said that the certifying court acted as another Supreme Court. But nobody said it, because quite plainly the provision for one, final, ultimate Supreme Court cannot be read to mean that all cases must be decided in it on appeal, or the institution would have burst a long time ago. Nor is there anything in the Constitution to suggest that the Supreme Court has to have the power to decide for itself what it shall decide out of an unlimited mass of possible cases. The power to decide cases, said Justice Goldberg, would seem to presuppose the power to determine what cases will be decided. It has seemed so for the last 50 years, but it has not been so through the greater part of the history of the Republic. Judicial power to determine what cases will be decided was an innovation made by Congress for the convenience of the Court in 1925. There is nothing constitutional about it. And at any rate, the study group proposal retains a substantial portion of it in the Supreme Court.
But the spirit of the Constitution is, says Justice Goldberg, greater than the letter, and the spirit is that it is the birthright of Americans to take claims involving their rights to the Supreme Court of the United States. Yes, in the words with which Hemingway’s The Sun Also Rises ends, yes, it is pretty to think so. But it is not true. It cannot be true in a nation of 220,000,000 people populating the better part of a continent, and served by one Supreme Court.
It would certainly be preferable to let things stay as they are. Change simply for the sake of change is an abomination, particularly in the judicial branch of government, whose stability, more even than that of other branches, is one of the great sources of its strength. But as the study group said, “relief is imperative, and among possible remedies, none of which is perfect, this appears to us to be the least problematic.”