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.

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 …

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