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.
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.