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Threat to the Supreme Court

Report on the Case Load of the Supreme Court

by a Study Group of the Federal Judicial Center
1520 H Street, NW, Washington, DC 20005, 65 pp., free

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.

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