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Charles E. Hughes
March 22, 1937
My Dear Senator Wheeler:In response to your inquiries, I have the honor to present the following statement with respect to the work of the Supreme Court:
1. The Supreme Court is fully abreast of its work. When we rose on March 15 (for the present recess) we had heard argument in cases in which certiorari had been granted only four weeks before, Feb. 1.
During the current term, which began last October and which we call October Term, 1936, we have heard argument on the merits in 150 cases (180 numbers) and we have 28 cases (30 numbers) awaiting argument. We shall be able to hear all these cases, and such others as may come up for argument, before our adjournment for the term. There is no congestion of cases upon our calendar.
3. The statute relating to our Appellate jurisdiction is the act of Feb. 13, 1925; 43 stat. 936. That act limits to certain cases the appeals which come to the Supreme Court as a matter of right. Review in other cases is made to depend upon the allowance by the Supreme Court of a writ of certiorari.
Where the appeal purports to lie as a matter of right, the rules of the Supreme Court (Rule 12) require the appellant to submit a jurisdictional statement showing that the case falls within that class of appeals and that a substantial question is involved. We examine that statement and the supporting and opposing briefs, and decide whether the court has jurisdiction. As a result, many frivolous appeals are forthright dismissed and the way is open for appeals which disclose substantial questions.
4. The act of 1925 ... was most carefully considered by Congress.... That legislation was deemed to be essential to enable the Supreme Court to perform its proper function. 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.
Hosts of litigants will take appeals so long as there is a tribunal accessible. In protracted litigation, the advantage is with those who command a long purse. Unmeritorious appeals cause intolerable delays. Such appeals clog the calendar and get in the way of those that have merit....
If further review [of cases] is to be had by the Supreme Court it must be because of the public interest in the questions involved. The review, for example, should be for the purpose of resolving conflicts in judicial decisions between different Circuit Courts of Appeal or between Circuit Courts of Appeal and State courts where the question is one of State law; or for the purpose of determining constitutional questions or settling the interpretation of statutes; or because of the importance of the questions of law that are involved. Review by the Supreme Court is thus in the interest of the law, not in the mere interest of the litigants.
It is obvious that if appeal as a matter of right is restricted to certain described cases, the question whether the review should be allowed in other cases must necessarily be confined to some tribunal for determination, and of course, with respect to review by the Supreme Court, that court should decide.
Furthermore, petitions for certiorari are granted if four justices think they should be. A vote by a majority is not required in such cases. Even if two or three of the justices are strongly of the opinion that certiorari should be allowed, frequently the other justices will acquiesce in their view but the petition is always granted if four so vote.
6. The work of passing upon these applications for certiorari is laborious but the court is able to perform it adequately. Observations have been made as to the vast number of pages of records and briefs that are submitted in the course of a term. The total is imposing, but the suggested conclusion is hasty and rests on an illusory basis.
Records are replete with testimony and evidence of facts. But the questions on certiorari are questions of law. So many cases turn on the facts, principles of law not being in controversy. It is only when the facts are so interwoven with the questions of law which we should review that the evidence must be examined and then only to the extent that it is necessary to decide the questions of law.
This at once disposes of a vast number of factual controversies where the parties have been fully heard in the courts below and have no right to burden the Supreme Court with the dispute which interests no one but themselves....
I think it safe to say that about 60 per cent of the applications for certiorari are wholly without merit and ought never to have been made. There are probably about 20 per cent or so in addition which have a fair degree of plausibility but which fail to survive critical examination. The remainder, failing short, I believe, of 20 per cent, show substantial grounds and are granted. I think that it is the view of the members of the court that if any error is made in dealing with these applications it is on the side of liberality.
An increase in the number of justices of the Supreme Court, apart from any question of policy, which I do not discuss, would not promote the efficiency of the court. It is believed that it would impair that efficiency so long as the court acts as a unit. There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to deride.
I understand that it has been suggested that with more justices the court could hear cases in divisions. It is believed that such a plan would be impracticable. A large proportion of the cases we hear are important and a decision by a part of the court would be unsatisfactory.
I may also call attention to the provision of Article III, Section 1, of the Constitution that the judicial power of the United States shall be vested "in one Supreme Court" and in such inferior courts as the Congress may from time to time ordain and establish. The Constitution does not appear to authorize two or more Supreme Courts or two or more parts of a Supreme Court functioning in effect as separate courts.
On account of the shortness of time I have not been able to consult with the members of the court generally with respect to the foregoing statement, but I am confident that it is in accord with the views of the justices. I should say, however, that I have been able to consult with Mr. justice Van Devanter and Mr. justice Brandeis, and I am at liberty to say that the statement is approved by them.