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The Workload of the Supreme Court: A Comment on the Freund Report

Published online by Cambridge University Press:  16 January 2009

Richard Hodder-Williams
Richard Hodder-Williams
Affiliation:
University of Bristol
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Extract

Belief that the Supreme Court is overburdened is not new. In the years after the Civil War, the expansion of the United States, both territorially and economically, enlarged the work of the Justices enormously, for not only did the number of cases on which they were required to pass judgement increase but the miles they had to travel within their own circuits also multiplied hugely. In 1891 the Circuit Courts of Appeal Act was passed, establishing intermediate courts between the District Courts, product of the original 1789 Judiciary Act, and the Supreme Court itself. Whereas in 1890 before the Act was passed 623 new cases were filed, in the 1892 Term only 275 were, and the Court was soon able to reduce its backlog. Nevertheless the number began once again to drift upwards so that by 1923 nearly 750 appeals and petitions for certiorari, on most of which the Justices were obliged to pronounce, reached the Supreme Court. Following intense lobbying by Howard Taft, at that time Chief Justice, a major reform took place in 1925 which allowed the Court discretionary power over virtually all its docket.

Type
Research Article
Information
Journal of American Studies , Volume 10 , Issue 2 , August 1976 , pp. 215 - 239
Copyright
Copyright © Cambridge University Press 1976

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References

1 For the precise extent of the Court's discretionary power, see Stern, R. L. and Gressman, E., Supreme Court Practice (4th ed., Washington: Bureau of National Affairs, 1969)Google Scholar.

2 Chief Justice Hughes to Senator Burton Wheeler, 21 March 1937. Reprinted in Hart, Henry M. and Wechsler, Herbert, The Federal Courts and the Federal System (Brooklyn: The Foundation Press, 1953), p. 1399Google Scholar.

3 Hart, Henry M., ‘ The Time Chart of the Justices ’, Harvard Law Review, 73 (1959–1960), 84–125CrossRefGoogle Scholar.

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5 Douglas, William O., ‘ Managing the Docket of the Supreme Court of the United States ’, Record of the Association of the Bar, New York City, 25 (1970), 279–98Google Scholar. He acknowledged the ‘ mounting load of work in processing, as distinguished from deciding cases ’, but still maintained that there was ample time for the necessary research, deliberation and so forth as well as ‘hiking, which is good for judges as well as others’.

6 Tidewater Oil Company v. United States et al. (1972), 409 (U.S.) 151, at 174.

7 On Douglas's speed, see Cohen, William, ‘ Justice Douglas, a Law Clerk's view ’, University of Chicago Law Review, 26 (1958–1959), 7–8Google Scholar.

8 ‘ Remarks … on the state of the Federal Judiciary ’ (New York, 5 July 1971), 12–13; ‘ Remarks … on the state of the Federal Judiciary ’ (San Francisco, 14 August 1972), 2, 10–12.

9 The Committee consisted of Professor Paul Freund, Professor Alexander Bickel, Peter Ehrenhaft, Dean Russell Niles, Bernard Segal, Robert Stern, and Professor Charles Wright.

10 Report of the Study Group on the Caseload of the Supreme Court (Washington: Federal Judicial Center, 1972) — hereafter Freund Report, pp. 8–9Google Scholar. The Report has been reprinted in Federal Rules Decisions, 57 (1973), 573–626Google Scholar.

11 Freund Report, pp. 47–8.

12 In forma pauperis goes back to 1892. Costs were originally met from the fees paid by lawyers for the admission to the Supreme Court Bar, but in September 1964 they were financed from an appropriation from Congress and came to less than $40,000 for the 1968 Term. One need not be destitute to qualify; one must just show that one cannot pay and at the same time continue to provide for the necessities of life. Adkins v. du Pont Company (1948), 335 (U.S.) 331. There are, it may be said, some advantages in so qualifying as is marvellously related in Lewis, Anthony, Gideon's Trumpet (New York: Random House, 1964)Google Scholar.

13 There is some indication that this trend is being, if not reversed, at least checked.

14 See generally Cox, A., The Warren Court (Cambridge, Massachusetts: Harvard University Press, 1968)CrossRefGoogle Scholar and Wasby, S. L., The Impact of the United States Supreme Court (Homewood: Dorsey Press, 1970), especially p. 7Google Scholar.

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18 New York Times, 27 April 1973; New Republic, 4 November 1972, p. 8.

19 Cf. Washington v. General Motors Corporation (1972), 406 (U.S.) 109.

20 For examples of such trivial cases, see Brennan, William J., ‘ The National Court of Appeals: another dissent ’, University of Chicago Law Review, 40 (1972–1973), 478Google Scholar.

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22 Many indeed, ‘ are almost unintelligible and certainly do not present a clear statement of issues necessary for an understanding ’, as Justice Frankfurter once wrote. Brown v. Allen (1953), 344 (U.S.) 443. at 493.

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28 Chief Justice Fred M. Vinson, ‘ Work of the Federal Courts ’, address before the American Bar Association, 7 September 1949, the relevant part being reprinted in Murphy, W. F. and Pritchett, C. H., Courts, Judges, and Politics (New York, Random House, 1961), pp. 54–7Google Scholar.

29 Quoted in Schmidhauser, J. R., The Supreme Court: its politics, personalities, and procedures (New York, Holt Rinehart, 1960), p. 122Google Scholar.

30 Some of the per curiam decisions tended to interpret the phrase in Brown that ‘ segregated schools … are inherently unequal ’ and therefore violate the Fourteenth Amendment to mean that all segregated public treatment violated the Fourteenth Amendment. The propriety of this is attacked by Kurland, Philip, Politics, the Constitution, and the Warren Court (Chicago: University of Chicago Press, 1970), p. 124Google Scholar. But see also Douglas, ‘ The Supreme Court and its Caseload ’, 411.

31 Freund Report, p. 6.

32 The exact number likely to be certified could only be guessed at. Freund Report, p. 18 (‘ several hundred ’); p. 21 (‘ perhaps something of the order of 400 a year ’); p. 47 (‘ perhaps 400 or 450 per Term ’). See also Freund, P. A., ‘ Why we need the National Court of Appeals ’, American Bar Association Journal, 59 (1973), 250Google Scholar.

33 Gressman, Eugene, ‘ The National Courts of Appeals: a dissent ’, American Bar Association Journal, 59 (1973), 254Google Scholar.

34 The so-called Rule of Four was part of the bargain Taft struck with Congress in 1925. Krislov writes that ‘ in Taft's term of administration and occasionally since then even three Justices who feel intensely about it have been sufficient to secure the granting of the writ ’. Krislov, Samuel, The Supreme Court in the Political Process (New York: Macmillan, 1968), p. 40Google Scholar. The Rule of Four seems more absolute now. When only seven Justices sat, as happened for a while in 1971 before Powell and Rehnquist replaced Black and Harlan, the Rule of Four still applied. Donaldson v. California (1971), 441 (U.S.) 968, certiorari not granted, Justices Douglas, Brennan, and Marshall dissenting.

35 ‘ The Supreme Court: deciding whether to decide’, Time (American edition), 11 12 1972, 40Google Scholar.

36 See Newland, Chester A., ‘ Personal Assistants to Supreme Court Justices ’, Oregan Law Review, 40 (1960–1961), 299–317Google Scholar.

37 Anonymous clerk quoted in Sarshik, S., ‘ The Supreme Court and its Clerks: bullets or blanks for hired guns ’, Juris Doctor, 2 (03 1972), 40Google Scholar and confirmed in interviews, April 1973.

38 See US News and World Report, 12 July 1957; 13 December 1957; 21 February 1958; Congressional Record, 15 June 1966 A 3226; Kopkind, A., ‘ Brennan v. Tigar ’, New Republic, 27 08 1966, 21–22Google Scholar.

39 Tanenhams, et al., ‘ The Supreme Court's Certiorari Jurisdiction ’, pp. 111–132.

40 Brennan, ‘ The National Court of Appeals ’, pp. 479, 481.

41 The calculation was made as follows: the first October Conference, lasting several days, disposes of a quarter of filed cases (1,000). Of the rest, 70% (2,100) do not reach the discuss list and 9% of those that do (81) are unanimously accepted for oral argument. This leaves 819 out of a 4,000 total for discussion at the Conferences between October and June, or less than 30 each week.

42 Freund Report, pp. 1, 6, 7.

43 Kurland, Politics and the Warren Court.

44 Alexander Bickel, ‘ The Overworked Court ’, p. 17. See also ‘ The Advocates — the PBS Fight of the week ’, 8 February 1973, Transcript, 2. Cf. Ehrenhaft's support in the same debate, Transcript, 6.

45 Powell v. McCormack (1969), 395 (U.S.) 486.

46 Weeks, Kent M., Adam Clayton Powell and the Supreme Court (New York: Dunellen, 1971) pp. 217–40Google Scholar.

47 On Hughes, see McElwain, E., ‘ The Business of the Supreme Court as conducted by Chief Justice Hughes ’, Harvard Law Review, 63 (1949–1950), 5–26CrossRefGoogle Scholar; for Burger, see Miller, A. S., ‘ Lord Chancellor Warren Earl Burger ’, Society, 10 (03/04 1973), 20CrossRefGoogle Scholar.

48 Brennan, W. J., ‘ The Supreme Court Review of State Court Decisions ’, Michigan State Bar Journal, 38 (11 1959), 19Google Scholar. It is thought that the unanimous decision in the April 1971 School Bussing case was due to the power of Brennan's dissent, which turned a 3–6 minority into a 9–0 majority, Burger joining the majority to follow Hughes's dictum and giving him the right to pen the opinion. Miller, ‘ Lord Chancellor Warren Earl Burger ’, pp. 19–20.

49 For some of the story behind the decision in Roe v. Wade and Doe v. Bolton, see Time (American edition), 5 February 1973, 51. Some of this is denied by Justice Stewart, Potter in Harvard Law Record, 56 (03 1973), 15Google Scholar.

50 While many cases are obviously not ‘ cert-worthy ’ very few cases are clearly ripe for judicial action. Cf. Rehnquist, W. H., ‘ The Supreme Court: past and present ’, American Bar Association Journal, 59 (1973), 363Google Scholar: ‘ … just because so many of our cases are in the area of constitutional law, the conclusions we reach are bound to be less certain and more subject to debate than were the conclusions reached by the Fuller Court ’. For perspectives on the recent growth and possible developments in the Court's case load, see Casper, Gerhard and Posner, Richard A., ‘ A Study of the Supreme Court's Caseload ’, Journal of Legal Studies, 3 (1974), 339–76CrossRefGoogle Scholar and Grossman, Joel B. and Sarat, A., ‘ Litigation in the Federal Courts: a comparative perspective ’, Law and Society Review, 9 (1975), 321–46CrossRefGoogle Scholar.

51 Harvard Law Record, 55 (1 12 1972), 1, 5Google Scholar; repeated in Harvard Law Record, 56 (23 03 1973), 15Google Scholar.

52 Hearings before Sub-Committee 5 of the House Judiciary Committee, 6 May 1971, 13.

53 The Commission on Revision of the Federal Court Appellate System, created by the Ninetysecond Congress and consisting of 16 appointed by the President, the Chief Justice, the President of the Senate, and the Speaker of the House of Representatives respectively, has recently recommended the creation of a new National Court of Appeals to provide additional capacity in the system. See Hruska, Roman L., ‘ Commission Recommends New National Court of Appeals ’, American Bar Association Journal, 61 (1975), 819–824Google Scholar.

54 Here, for once, I largely agree with Professor Kurland: ‘ The Court must be protected, by legislation if necessary, from its overgenerous impulses to spend its time on cases that are not worthy of it and on nonjudicial tasks that are not properly its business ’. Kurland, P. B., ‘ The 1971 Term: the year of the Stewart-White Court ’, in Kurland, P. B. (ed.), The Supreme Court Review 1972 (Chicago: University of Chicago Press, 1973), p. 329Google Scholar.

55 Miller ‘ Lord Chancellor Warren Earl Burger ’, 19.

56 Hughes, Charles Evans, The Supreme Court of the United States (New York: Garden City, 1936), pp. 74–5Google Scholar.

57 Frankfurter, Felix, Of Laws and Men (New York: Harcourt Brace, 1956), pp. 32–4Google Scholar.

58 Frankfurter, Felix, ‘ The Supreme Court in the Mirror of Justice ’, University of Pennsylvania Law Review, 105 (1957)CrossRefGoogle Scholar.

59 Brennan, ‘ The National Court of Appeals ’, p. 484. Cf. also Douglas, ‘ The Supreme Court and its Caseload ’, 413. ‘ It takes a decade or more to run the length of the course and become familiar with its various functions ’. In December 1975, only Brennan, Stewart, and White had sat for more than 10 years.

60 Abraham, Henry J., Justices and Presidents: a political history of appointments to the Supreme Court (New York: Oxford University Press, 1974), pp. 46–7Google Scholar.

61 Lewis Powell, for instance, is on record publicly as supporting the Freund Report's appreciation of the certiorari problem, although his attitude towards the proposed National Court of Appeal was properly non-committal. Evening Star and Daily News (Washington), 11 04 1973Google Scholar. On the other hand, too great a familiarity may breed an inflexible set of priorities and an aversion to rethinking old values.

62 Abraham, , Justices and Presidents, pp. 247–8Google Scholar.

63 San Antonio Independent School District v. Rodriguez (1973), 411 (U.S.) 1.

64 See, for example, Burger, Warren E., ‘ Court Administrators: where would we find them? ’, Judicature, 53 (1969–1970), 108–110Google Scholar.

65 On some of this, see Anderson, Jack and Kalvedge, Carl, American Government (like it is) (New York: Warner, 1972), pp. 106–110Google Scholar and Miller, ‘ Lord Chancellor Warren Earl Burger ’, 22, 26.

66 Freund Report, pp. 18–24, 47.

67 These figures assume (i) that all Justices actually consider all petitions, a requirement implicit in the dissatisfaction of present procedures, (ii) that the number of cases appealed remains relatively stable, and (iii) that the Justices spend their whole working year on the task.

68 Warren, ‘ Address ’, p. 11; Brennan, ‘ National Court of Appeals ’, p. 479; John Harlan, ‘ Manning the Dikes ’, Eighteenth Annual Cardozo Lecture before the Association of the Bar of the City of New York, 28 October 1958, p. 16. The law clerks I spoke to confirmed this view that after a few months they began to realize instinctively which petitions were frivolous and which needed full consideration.

69 The settling of comparatively minor inter-circuit disputes is hardly a significant enough sop to their amour-propre.

70 Goldberg, ‘ One Supreme Court ’, 14; Warren, ‘ Address ’, pp. 25–30.

71 Goldberg, ‘ One Supreme Court ’, 15; Warren, ‘ Address ’, pp. 18–23.

72 Warren, ‘ Address ’, pp. 16 ff.; Brennan, ‘ National Court of Appeals ’, pp. 480–1

73 Warren, ‘ Address ’, pp. 4–8, e.g. ‘ The result, then has been an ad hoc proposal, released through a televised press conference, by seven individuals speaking only for themselves ’. The Freund Committee interviewed all the sitting Justices, six individually, three together, the Chief Justice's senior law clerk and two other law clerks who had clerked for Justices Black and Harlan during the 1969 Term. (These clerks apparently disagreed with the Report's findings; Warren, ‘ Address ’, p. 6.) My own interviews, although possibly shorter and not specifically directed to the Freund Committee's Report, ranged somewhat wider. They included the present Chief Justice, Justice Douglas (the longest serving), Rehnquist (the most junior), Stewart (a middle-term pivotal Justice) and the former Chief Justice Earl Warren. I also talked to 12 active law clerks as well as officials in the Federal Judicial Center, the Administrative Office of U.S. Courts, and the Senate Judiciary Committee.

74 New Republic, 23 December 1972, 9.