Threat to the Supreme Court

This short document has so far received little public notice, but it is alarming. For it shows that the Supreme Court is again under attack and that this time even more is at stake than decisions over who will sit on the Court. Unlike the fights over President Roosevelt’s court-packing plan and over Fortas, Haynsworth, and Carswell, which were waged by opponents of the Court who thought they could change it by picking new players, the present attack comes from men who profess to support the Court, yet who are striking at its very rules and authority.

Shortly before Christmas, the Federal Judicial Center published the Report on the Case Load of the Supreme Court, confirming earlier rumors that the Chief Justice of the United States had appointed a study group to recommend ways to lighten the work of the Court. The seven-member group, whose chairman was Professor Paul A. Freund of Harvard, and which included Professor Alexander Bickel of Yale, former ABA President Bernard Segal, and Professor Charles Alan Wright of the Texas Law School, spent a year on the project. They interviewed Justices of the Court, talked with law clerks, compiled statistics, deliberated. The result is the kind of technical document that the government regularly produces and then buries in the Library of Congress. Yet this report has already been criticized by Justice William O. Douglas, Justice Potter Stewart, former Justice Arthur J. Goldberg, and even former Chief Justice Earl Warren, who has otherwise diligently avoided controversy since his retirement.

The Freund committee believes that the Court has so much work that it can scarcely function at all. “We are concerned,” it writes,

that the Court is now at the saturation point, if not actually overwhelmed. If trends continue, as there is every reason to believe they will, and if no relief is provided, the function of the Court must necessarily change. In one way or another, placing ever more reliance on an augmented staff, the Court could perhaps manage to administer its docket. But it will be unable adequately to meet its essential responsibilities.

The report concludes that the Court cannot continue to complete its “essential” business unless some of its present authority is transferred by Congress to other courts.

I

The Court has both original jurisdiction to preside over trials and appellate jurisdiction to review cases already decided by lower courts. Original jurisdiction extends to controversies so rare that the Freund committee virtually ignores them. Most of the Court’s business derives instead from its appellate jurisdiction to review all cases from lower federal courts and any case from a high state court that involves rights under federal law. Last year 4,371 appellate cases were taken to the Court and put on its docket, two thirds from lower federal courts and one third from state courts.

But the statistics tell only part of the story. At one time, the Court was required to decide all appellate cases, however clear-cut or insignificant they might have been. In 1925, Congress passed a Judiciary Act in response to the Court’s growing docket and to pressure from the overworked Justices. The act allows the Court to screen the appellate cases for the few it wishes to decide and to deny the remainder without decision, in effect letting the decision of the lower court stand. Accordingly, the Court now regulates its case load by taking only a limited number of cases for full argument and decision each year. During the 1970-1971 term, for example, the Court heard argument in 151 cases of a total docket of 4,192. In fact, while the docket increases with each term, the Court hears argument in approximately the same number of cases each year. Between 1940 and 1970, while the docket grew from 1,109 to 4,192 cases, the Court regularly selected only about 140 cases for full argument.

The Court cuts down its work even further by consolidating for joint decision cases that raise similar issues. As a result, the Court hands down about 120 official opinions a year, which the nine Justices divide among themselves. Thus, although Justices may write additional concurring or dissenting opinions of their own, each has official responsibility for only about a dozen Court opinions each term.

The Freund committee recognizes that the Court has succeeded in regulating the number of cases it decides by full opinion, but it is dismayed by the Court’s raw docket, which has grown fourfold over the last thirty years. The Court now reviews about seventy new cases a week, from which it selects two or three for full review. The committee assumes from these statistics that the Supreme Court has lost control over its docket, and concludes that the Court needs help in winnowing the “chaff” (as the committee calls it) from the few cases worthy of review.

The principal and most controversial recommendation by the committee is that Congress transfer some of the present authority of the Supreme Court to a new National Court of Appeals. This “National Court” would consist of seven judges, drawn by rotation from existing federal courts of appeals, who would serve for staggered three-year terms, with no more than one judge from any one of the eleven circuits. The National Court would, first, screen all appellate cases that now go to the Supreme Court and transmit some of them to the Supreme Court, denying the remainder. The Freund committee estimates that the National Court would transmit around 400 cases a year, from which the Supreme Court would select one third for full decision. While the Supreme Court itself could still select cases that had not yet been screened by the National Court, it would nevertheless lose forever the power to review cases once the National Court had denied them.

Second, the National Court would have the power to act as the highest federal court in the land by considering certain federal (although not state) cases on its docket and deciding them itself. The Supreme Court now resolves the differences that arise among the eleven federal circuits concerning interpretation of the US Constitution and other federal laws. It does this when it reviews a federal case to which differing circuit court precedents apparently apply. Under the Freund proposal, however, the National Court would have the authority to resolve some of the conflicts among the circuit courts by making final interpretations of law which the Supreme Court could not review.

II

The proposal of a National Court is troubling. It rests on an assumption about the case load of the Supreme Court that has nothing to do with the way the Court really works. The Court, as we shall see, is not in fact overworked. Even if it were, the proposal addresses the least burdensome part of the Court’s responsibility. Instead of making appellate justice more efficient, the proposed changes would serve to isolate the Court and promote conflicting sources of authority by interposing still another court between the Supreme Court and the courts below. More important, under the guise of simplifying the Court’s work, the proposal would undermine the authority of the Court to determine which cases it will decide.

It should be noted that Chief Justice Burger, as chairman of the Federal Judicial Center, picked the members of the Freund committee himself. The Chief Justice has made no secret of his own views about the case load of the Court. In his most recent message on the “State of the Judiciary,” he said:

In my remarks to you in New York last year, I said that something must be done to arrest the constant increase in docketed cases in the Supreme Court or the quality of the Supreme Court’s work would become impaired and the Court would be unable to perform its historic role in the American system of government. Now, after three years on the Court, that conviction becomes more firm.

It is also no secret that the Chief Justice placed on the committee three prestigious academics who variously believe that the Court should either decide fewer cases or decide its cases very differently. Professor Freund warned as long ago as 1961 that the “mounting docket of cases looms as a serious barrier to the true purposes of the Supreme Court,” and recommended a policy of “granting fewer petitions for review.” As he put it:

[Reasoned adjudication] is too precious to be at the hazard of internal pressures from the Court’s work load that interfere with the essential processes of reflection, consultation, collective criticism, and careful exposition.

Professor Bickel is an outspoken critic of the Warren Court who complains that the Supreme Court already decides too many cases on their merits. Professor Wright, who disagrees with many of the Court’s important decisions in criminal cases, argued a few years ago that even the lower federal courts were overworked. Of course these and the other committee members are honorable men who undertook, in their own words, “to study the case load of the Supreme Court and to make such recommendations as [their] findings warranted.” Yet, considering their views and the views of the Chief Justice who appointed them, one suspects that they came not to praise the Supreme Court, but to bury it.

More important, the committee consists of men who know the Court only from the outside, as law professors, practicing lawyers, and court administrators. But it includes no one who knows the Court from the inside, and who can determine whether the Court is indeed overworked. One notes the absence of Justice Stanley Reed, Justice Tom Clark, Charles Whittaker, Arthur Goldberg, and Abe Fortas—activists and conservatives who were appointed by five different Presidents and who served over a period of three decades.

The only active Justice who has made an independent study of the case load of the Court rejects the Freund committee premise. Justice William O. Douglas believes that the Court, if anything, is underworked. As he wrote in the Cornell Law Review some years ago,

The upshot of these statistics is that we have fewer oral arguments than we once had, fewer opinions to write, and shorter weeks to work. I do not recall any time in my twenty years or more of service on the Court when we had more time for research, deliberation, debate, and meditation.

Two months ago, in an opinion that preceded the Freund report, Douglas reaffirmed the same view. He referred to the “vast leisure time we presently have,” and repeated that “the case for our ‘overwork’ is a myth.” Last term Douglas wrote twice as many opinions as any other member of the Court (many of them dissents), and three times as many as some of his brethren.

How does one explain the differences between the position of Justice Douglas and that of the Freund committee? Both start with the same statistics and have access to the same information. The explanation, according to Professor Freund, is that Justice Douglas possesses exceptional abilities that distinguish him from others on the Court. A better reason is that while the Freund committee largely based its view on statistics, Justice Douglas based his on the art of judging itself.

To begin with, as Justice John Harlan told a group at the Chicago Law School in 1963, “…overall statistics alone are not very revealing of recent trends in the volume of the Court’s work.” Statistics do not account for the fact that the Court approaches its cases in different ways. The Court first determines whether it should take a case, which is very different from, and less exacting than, deciding one. The Justices do not have to hear oral argument or write opinions explaining their decision to accept or refuse a case. Even more important, they do not have to make a final judgment concerning the law in the case. They must only decide whether the case is sufficiently important or interesting or troubling to be fully argued.

The Court dismisses more than 90 percent of its cases without deciding them. Normally, the Justices receive the papers in a case two weeks before passing on it. The petitions are frequently only a few pages long and some Justices prefer to read each petition themselves. Others ask their law clerks to summarize the arguments and make a recommendation. The Justices then meet in secret session. Unless at least one Justice wishes to talk about a case, the Court automatically denies it without discussion. The Court accepts cases for argument only if four Justices vote to do so. During the week ending December 11, 1972, the Court considered eighty-two cases from which it selected only five for full argument. Among the cases denied, the Justices probably did not discuss more than six among themselves.

The burden of the work falls, instead, on the 150 to 170 cases the Court selects each year for full argument. There is no putting them off for later decision. Each Justice must study the next round of papers, listen to lawyers for each side, confer with his brethren, review his own prior positions, and eventually decide the case for himself. Then, if he has responsibility for an official opinion of the Court or wishes to write a separate opinion, he must try to explain his decision in a way that persuades his brethren and the half million lawyers in the country. Justice Louis D. Brandeis was known to prepare as many as sixty drafts of a single opinion. In the death penalty cases last June, each of the nine Justices wrote a separate opinion in what amounted to a book of over 230 pages. It can be harrowing work, but it is this work that is at the heart of the Court’s function and no one, including the Freund committee, wants to alter it in any way.

In its fascination with statistics, the Freund committee has overlooked a more useful measure of the Court’s work: the Court is “current” with its docket. Before the Judiciary Act of 1925, the Court frequently fell years behind in deciding cases that had been argued. But after the act gave the Court the right to select the cases it wanted to decide, the Court has been up to date. It screens cases as soon as the papers are filed, hears oral argument as soon as the lawyers are ready, and decides all argued cases by the end of the term. The Court is able to administer its docket and still take a three-month summer vacation and a one-month recess every year.

Whatever time elapses between filing and deciding a case is largely for the benefit of the litigants. After a case is filed, the opposing party has a month in which to respond. If the Court then selects the case for full argument, the first party has forty-five days and the opposing party another thirty days thereafter in which to file further briefs. Because of such intervals, the Court regularly carries over cases from one term to another. But they hardly represent a “backlog,” as the report pretends. Most lawyers wish they had even more time in which to prepare. After the papers are all in, the Court hears an hour of oral argument for each of the cases and then invariably decides them by the end of the term. Last March and April, for example, the Court heard two important cases involving the rights of US senators and decided both in June with opinions exceeding 120 pages in length.

Some Justices have complained about their work. Justice Whittaker, for example, evidently worked so hard that he prematurely left the Court “physically exhausted” (as Chief Justice Warren later described him). On the other hand, from what his colleagues later wrote about him, one can conclude that Justice Whittaker was never happy on the Court. Although he had done excellent work as a lower court judge, he was tormented by his responsibility as a Supreme Court Justice. He agonized over every decision he was called upon to make, and one suspects that no amount of judicial reform would have eased his burdens.

More recently, Justice Lewis F. Powell, Jr., reported to a conference of judges that he found his work “overwhelming in terms of its demands on my time, my mental and my emotional resources.” But it should be noted that Justice Powell came to the Court in the middle of an important term only to find that the Court had been holding its most controversial cases for his arrival, and that he frequently held the deciding vote. Furthermore, history shows that Justices who feel overwhelmed by their work at first later come to feel differently. Justice Harlan, who complained to the New York City Bar Association in 1958 that the Court was overworked, told a Chicago group in 1963 that the Court could successfully manage its business by regulating the number of cases it agrees to decide. Similarly, while Justice Stewart told the American Bar Association in 1959 that the Court’s case load was “demonstrably a heavy one,” he told reporters at Harvard recently that the case load is “neither intolerable nor impossible to handle” and suggested that reformers table their proposals for another ten years.

Indeed, since the Freund committee interviewed only the nine Justices now on the Court, it probably received a misleading impression. The Chief Justice had been on the Court only a year when he appointed the committee. Justices Blackmun, Powell, and Rehnquist joined the Court even more recently. New Justices arrive to do work unlike anything they have known before. Justice Douglas has said that a new member needs ten years to master himself and the job:

There is a popular impression that there are criteria, based on experience, that qualify some to sit on the Court more than others. A man prominent in bar association activities or a judge of a state or federal court is often thought to have special qualifications to be a Justice of the Supreme Court. Actually no prior experience, however varied, supplies the elements…. No matter the prior experience of a Justice, it takes about a decade on the Court for one to feel at home in all fields of the law.

III

Even if the Court were overworked, which it is not, the proposed National Court is misconceived in several other important respects. It has very much the appearance of a committee compromise of several contradictory positions. Far from helping the Court, it would impede it from performing its constitutional mission.

First, the National Court would, if anything, compound the work of the Supreme Court. It leaves the Court both the hard work of deciding between 150 and 170 cases a year, and the task of winnowing them from an estimated larger group of 400 cases. Yet whatever difficulties the Supreme Court now has in screening its docket, it will have the same ones with the 400 cases the National Court would send it, for these of course would be the most difficult cases. Most of the remainder can be denied without appreciable effort. Chief Justice Charles Evans Hughes and Justice Harlan estimated that between 50 and 60 percent of the cases submitted for review are so frivolous that they should never have been filed. In short, the National Court leaves the Supreme Court with the hard work and takes away what is very little work at all.

Moreover, the figure of 400 cases a year is only an estimate. The judges on the National Court, after all, come from the very federal courts whose decisions are being screened. They may agree with their own courts, which would leave the Supreme Court with nothing to review. On the other hand, since they do not have to decide those cases themselves and have no evident interest in limiting their number, they may transmit far more than 400. In that event, the Supreme Court would end up where the Freund committee found it.

Finally, because cases may still go to the Supreme Court before they are denied by the National Court, they can be expected to do so. Lawyers today do not by-pass courts of appeal by going directly to the Supreme Court because they know they can always go there later if necessary. But under the Freund proposal, cases will have no other chance to reach the Supreme Court if the National Court turns them away first. Consequently, diligent lawyers will find themselves filing two petitions for review simultaneously, one in each court. For the cost of xeroxing, they can guarantee their clients a chance to be heard by the Supreme Court. If Congress establishes the National Court to take over the screening function, the Supreme Court would presumably defer to the new court and by-pass it only in exceptional circumstances. But even if the Supreme Court, before review by the National Court, selects only 1 percent of the cases sent simultaneously to both courts, it still will have to review all of them.

Moreover, with respect to federal cases, the National Court would usurp the power of the Supreme Court to resolve “conflicts” among lower courts concerning the interpretation of federal law. This is a great power indeed. Most lawyers can discover cases in other circuits that conflict with the law in their own circuit. When they do so, they will, under Freund’s proposal, take their case to the National Court. As a result, the National Court will be making law on the most important questions of our national life without the Supreme Court having anything to say about it. While the US Constitution specifies that there be “one” Supreme Court, the National Court would become its rival with equal authority to shape federal law.

In “conflicts” about constitutional law, moreover, the National Court will ultimately clash with the Supreme Court. For the Supreme Court will still have to decide the same constitutional issues in state cases as the National Court confronts in federal cases. So long as the Supreme Court has the final word in constitutional matters, therefore, the National Court will be unable to resolve such conflicts with finality and, instead, will simply create more confusing law for the Supreme Court to reconcile.

More alarming still, the Supreme Court would lose forever the power to review cases that the National Court had screened and denied. Yet “the selection of cases,” according to Justice Powell, “is as vital as the decisional process itself.” Justice Brandeis was even more emphatic. “The most important thing we decide,” he used to say, “is what not to decide.”

Why is it so important that the Supreme Court screen its own cases? One reason is that the Supreme Court has its own sense of timing. Again, the death penalty cases are an example. For years the Court was asked to decide whether capital punishment violates the constitutional prohibition against cruel and unusual punishment. Throughout the Sixties, the Court screened and denied hundreds of cases making that argument. Last year, the Court felt the time was right, selected a group of capital punishment cases, and decided the issue.

The Court was able to decide the death penalty cases when it did only because they were already on its docket. Who knows what would have happened had the Court waited a year, two years, or even ten years for the National Court to transmit them, or for a lawyer to file petitions for simultaneous review. The ability of the Supreme Court to set its own pace should not depend on whether the National Court gives it a chance to do so. What is equally important, as Justice Harlan told the New York City bar, is that “the question whether a case is [worthy of review] is more a matter of ‘feel’ than of precisely ascertainable rules.” Each Justice follows his own criteria. Justice Brandeis believed, according to Professor Freund, that the Supreme Court should concentrate on important cases and ignore “individual injustices.” Oliver Wendell Holmes, on the other hand, wrote,

My keenest interest is excited not by what are called great questions and great cases, but by little decisions which the common run of selectors would pass by because they did not deal with the Constitution or a telephone company, yet which have in them the germ of some inner theory, and therefore of some profound interstitial change in the very tissue of the law.

The Freund proposal seems intended to isolate the Supreme Court from the 4,000 messages a year that arrive from courts throughout the country. By screening those cases, however negligible they may seem, the Supreme Court now knows more about the nuances of legal change, and knows them sooner, than any other government body. Justice Douglas considers this indispensable:

The review or sifting of these petitions is in many respects the most important and, I think, the most interesting of all our functions. Across the screen each term come the worries and concerns of the American people—high and low—presented in concrete, tangible form.

If a National Court is set up, the Supreme Court will eventually lose touch with this information and with the nation it serves. It will become a follower, not a leader of legal change, which may be what the Freund committee intended all along.

America listens to the Supreme Court now because it has the final word and because, as Justice Arthur Goldberg says, it stands open to everyone:

It is perhaps the greatest virtue of the Supreme Court as it now functions that it serves as a guarantee to all citizens of whatever estate, race or color, that our highest court is open for consideration of their claim that equal and relevant justice under the Constitution is being denied them.

Under the Freund proposal, those doors will close. Power will shift to the palace guard. Citizens will stop appealing to the Supreme Court, stop listening to it and believing in it, and eventually stop obeying it.