Gideon's Trumpet Read Online Free Page B

question.
    If the Court were required to hear every case that a nation of one hundred and eighty million litigious people could contrive to bring within its jurisdiction, the judicial process would quickly break down. Chief Justice Charles Evans Hughes explained in 1937:
    “No single court of last resort, whatever the number of judges, could dispose of all the cases which arise in this vast country and which litigants would seek to bring up if the right of appeal were unrestricted.”
    Hughes wrote this in a letter to Senator Burton K. Wheeler that was instrumental in defeating President Franklin Roosevelt’s plan to pack the Court. The President wanted to add a justice for each member of the Court over seventy years old—six at the time. Everyone knew his real reason was that he disapproved of the judicial philosophy of the 1937 Court, but he gave the explanation that the older judges needed help to turn out their work. In addition to showing that the Court was well up on its work, the Hughes letter devastated the argument that more judges would, as he put it, “promote the efficiency of the Court.” To the contrary, he noted, “there would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.” (Writing of the same problem of collective judging exactly a hundred years earlier, when there were eight Supreme Court justices, JusticeStory said: “I verily believe, if there were twelve judges, we should do no business at all, or at least very little.”) An efficiency expert would doubtless recommend that the Court sit in panels of three instead of all nine in every case. Dealing with that idea, Hughes remarked that the Constitution speaks of “one supreme Court” and concluded—some thought he was giving an advisory opinion—that “the Constitution does not appear to authorize two or more Supreme Courts or two or more parts of a Supreme Court functioning as separate courts.” In any case, whether constitutionally permissible or not, it seems most unlikely that the country would tolerate having the decisions of so final and powerful a judicial body depend on which three justices happened to sit in each case.
    And so, to let our one Supreme Court perform its great functions, a method had to be devised to reduce the burden of incoming cases. The problem became acute in the early years of this century, when the Court found itself falling farther and farther behind in its docket. The justices were being buried in trivia, and important cases were being reached years after they were filed. The Court itself, through a committee of justices, drafted a legislative solution, and Congress enacted it into law as the Judges’ Bill of 1925. The solution was simply to make the Court’s jurisdiction to a large extent discretionary, with the justices free to choose which cases they would hear among those admittedly within their judicial reach. For the litigant, a new phase was added to the process of obtaining a Supreme Court decision on his case: He first had to persuade the Court to hear the case at all.
    Since 1925 one of the most important duties of the Supreme Court has been to decide whether it will decide. The technical device used is a petition for a writ of certiorari.This formidable-sounding beast is descended etymologically from the Latin
certiorari volumus
, “we wish to be certified”—an old writ used to bring the certified record of a case up from a lower court for immediate scrutiny by a reviewing bench. The writ is not so mysterious as its name. In applying for one, the litigant is simply asking the Supreme Court to hear his case. When the Court grants the writ, there are no great formalities that follow; both sides are simply notified by the Court’s published orders and by brief letters from the Clerk that the justices are going to review the decision of the lower court.
    The principle underlying the grant of this great discretion to the Supreme