The " Judges' Bill" After Half a Century

Merlo J. Pusey

There are rhythms of change in the history of the Supreme Court, as in the history of other institutions, and our national bicentennial is an appropriate time to focus on the steps that have been taken to enable the Supreme Court to keep abreast of its momentous task. Fifty years have elapsed since the Court was given a large measure of control over its own workload, thus preparing the way for it to function effectively as a national agency for clarification of the law. In this year when our thoughts are turned to history, the so-called "Judges' Bill" of 1925 merits a perspective view.

The struggle to keep the Court equal to its task has been especially onerous because, despite its status as one of the three coordinate branches of the United States government, it must look to Congress to define its jurisdiction and to create supplementary units of the judicial system. The Constitution gives the President broad powers of executive leadership, and he has seldom been crippled in the discharge of his duties. Congress, too, with its sweeping legislative mandate, has all the authority it needs to shape its course. The Supreme Court, which Alexander M. Bickel and others have called "the least dangerous branch," has to rely upon an understanding of its problems in Congress and to some extent in the bar and in the country.

That has been so from the beginning. In the early days of the Court the Justices were plagued by the requirement of riding the circuits imposed on them by Congress. Despite repeated pleas from the bench and bar, at onerous dissipation of judicial talent continued until 1891, when Congress at last created the Circuit Courts of Appeals to carry the burden of routine appeals from the Federal District Courts. The result was a sudden shrinkage in the workload of the Supreme Court. New cases filed in the Supreme Court dropped from 623 at the 1890 term to 275 in the 1892 term after the new intermediate appellate courts got into action. The act of 1891 became an important landmark in the modernization of our judicial system.

Nevertheless, the relief thus granted proved to be temporary. New legislation, the growth of the country, and expansion of the economy brought a steady rise in the volume of litigation. Within a few decades the courts were once more overloaded. Outmoded procedures, the lack of any systematic organization within the judicial branch, and the continuation of automatic appeals to the Supreme Court in many cases led to clogged dockets and the injustice of long delays in reaching final judgments. In 1908 William Howard Taft, who had been a circuit judge and was then a member of President Theodore Roosevelt's cabinet, complained that "our failure to secure expedition and thoroughness in the enforcement of public and private rights in our courts" was one of the most critical weaknesses of the United States government.

When Taft became President in 1909 he made judicial reform one of his foremost objectives, but Congress was not ready to modernize the courts. Every proposal for change seemed to arouse fears of empire-building or self-aggrandizement on the part of the judges. In 1916 Congress did allow the Supreme Court to reject some cases of minor importance, but this relief proved to be meager in the face of the mounting demands. It was not until Taft became Chief Justice in 1921 that judicial reform began to get the attention it deserved. By this time the average case filed in the Supreme Court had to wait fourteen months for a hearing, even though many of the cases the Court was obliged to hear were of little significance so far as enunciation of the national law was concerned. Justice John H. Clarke complained that "more than one-half of the cases are of no considerable importance whether considered from the point of view of the principle or of the property involved in them."

Chief Justice Taft's first major reforms were aimed at the lack of cohesion in the judicial system as well as delays and inefficiency. Reversing the policy of Chief Justice Edward Douglas White, who eschewed all involvement in legislative policy, Taft labored assiduously for legislation to improve the quality of justice. The program he advocated before bar associations and committees of Congress in 1921 consisted of three "steps of progress": First, the creation of more federal judgeships; second, the authority to assign these judges to the districts where their services were most needed; third, the establishment of a judicial conference consisting of the senior judges o£ each circuit meeting with the Chief Justice to survey the work of the judicial system and recommend changes when necessary. Congress rejected the idea of a "flying squadron" of judges, fearing interference from Washington with federal judges in the districts, but it did create twenty-one new judgeships and gave the Chief Justice additional stature as head of the judicial system by authorizing a Judicial Conference of Senior Circuit Judges. The rationale for this step has been cogently stated by Felix Frankfurther and James M. Landis:

"The judiciary, like other political institutions, must be directed. But it must be self-directed. An executive committee of the judges, with the Chief Justice of the United States as head, is a fit and potent instrument for the task."

The Judicial Conference became a powerful instrument for focusing national attention upon the problems of the federal courts. Taft called the first annual Conference of Senior Circuit Judges for December 14, 1922, and demonstrated its usefulness. His successor's faithfully built on that foundation. The conference evolved into an effective instrument for binding an array of separate courts, each one operating independently with no effective check on its work, into a well-managed judicial system. Taft's immediate successor in the Chief Justiceship, Charles Evans Hughes, promoted the idea of conferences within the circuits for the discussion of judicial problems on a more local scale. Then problems of the various circuits were brought together in the national conference. For the first time the courts had a workable system for making their requirements known. In 1939 the Administrative Office of the United States Courts was created to gather statistics and help the courts coordinate their work, while the central tasks of recommending changes, improving administration and working for more judgeships remained with the judges themselves, operating through the Conference of Senior Circuit Judges, which later became the Judicial Conference of the United States. These administrative arms of the judicial system have exerted a momentous influence on its development.

While this introduction of the management principle into the courts was taking shape, Chief Justice Taft was also working on relief of the Supreme Court from the trivia that still cluttered its docket. Drawing a vital distinction between an ordinary court of appeals and the Supreme Court of the United States, he emphasized the necessity of keeping the Supreme Court in a position to pronounce "the last word on every important issue under the Constitution and the statutes of the United States. A Supreme Court," he continued, ". . . should not be a tribunal obligated to weigh justice among contending parties. They have had all they have a right to claim when they have had two courts in which to have adjudicated their controversy."

In this instance Taft named a committee consisting of Associate Justices William R. Day, Willis Van Devanter and James C. McReynolds, which was later assisted by Justice George Sutherland and which of course worked closely with the Chief Justice himself. This group worked with the Judiciary Committees of the House and Senate and, at the request of the interested legislators, drafted a bill which came to be known as "the Judges' bill." Taft explained the measure in an address to the Chicago bar:

"The new bill proposes to enlarge the field in which certiorari is to take the place of obligatory jurisdiction.... As it is now, the important governmental, constitutional questions that we have to advance and set down for immediate hearing postpone the regular docket and are likely to increase our arrears.... The Supreme Court will remain the supreme revisory tribunal, but it will be given sufficient control over the number and character of the cases which come before it to remain the one Supreme Court and to keep up with its work."

The bill encountered stiff opposition from a few legislators, including Senators Thomas J. Walsh, William E. Borah, John K. Shields and George W. Norris, who feared that it would give the Justices too much discretion. In the face of this opposition Congress procrastinated. Taft continued a relentless campaign, through friendly legislators, the American Bar Association, and other groups, to arouse support for the bill. On December 5, 1924, he wrote to Senator A. Owsley Stanley of Kentucky:

"For two years our Court has been very anxious to secure the passage of a bill to give us greater power of certiorari. We wish to put into one statute the grounds and methods of appeal both to the Circuit Courts of Appeals and to us.... The bill is opposed by Senator Thomas Walsh and Senator Shields on the ground that they do not believe in giving our Court greater jurisdiction in certiorari. They think they shouldn't give us too much discretionary power. I am sorry they think so, but the truth is that there is no other way by which the docket in our Court can be reduced so that we can manage it. We are now a year and three months behind."

One aspect of the Judges' bill seemed to play into the hands of the opposition. For reasons of precision in an extremely difficult area of law-making, it was highly technical in its terminology. Thomas W. Shelton informed the Chief Justice that an effort was being made to convince members of the House that they should vote for the bill even though many lawyers did not understand it. The Bar Association, Shelton said, was urging members of Congress to adopt the bill as an experiment and to keep close watch over its operation. If it should lead to unfortunate results, the effects of the bill on the judicial system would then be better understood and corrective measures could be taken.

Whether or not this novel argument carried weight with the legislators, the once formidable opposition to the bill finally melted away. President Calvin Coolidge appealed to Congress to pass the bill, and by December 1924, the Chief Justice was able to count, with gleeful satisfaction, the names of 84 Senators and 80 percent of the members of the House who were at last ready to vote for it. The Judges' bill finally passed with a landslide vote of 76 to 1 in the Senate on February 13, 1925.

The half century that has since elapsed has removed all doubt as to the wisdom of that course. The Supreme Court was able to dispose of its backlog of cases and to reduce its intake to a point where it was manageable. Writs of certiorari, which the Court could grant or deny at its discretion, soon accounted for most of its business. The fiftieth anniversary of the Judges' bill quite properly brings a renewal of appreciation for the pertinacity of Chief Justice Taft. His unrelenting campaign over a period of years was the most potent force behind the reform. He is entitled to a large measure of credit for enabling the Supreme Court to concentrate its energies on its historic and essential function of clarifying the law for the benefit of the nation and the public.

Taft himself apparently felt some disappointment because Congress did not go as far as he had wished. The goal of the Judges' bill, in the words of Justice Van Devanter, was "a revision and restatement--a bringing together in a harmonious whole--of the statutes relating to the appellate jurisdiction of the Circuit Court of Appeals and the Supreme Court." That objective failed, but this does not diminish the significance of the milestone that was attained.

However technical the provisions of the Judges' bill may be, the principle enacted is clear enough. Congress voted to allow the Supreme Court to put aside litigation that was interfering with its primary function to clarify the law of the land. When Charles Evans Hughes succeeded Taft as Chief Justice in 1930, he showed great interest in projecting and amplifying the principle that Taft had succeeded in getting established. One of the clearest statements of the Court's certiorari jurisdiction is to be found in the testimony he gave before the Senate Judiciary Committee on March 25, 1935:

"Under the jurisdictional act of 1925, there are only a limited number of cases in which the right of appeal to the Supreme Court is allowed, and the Court determines on application for certiorari what cases should be brought before the Court. That is a very important exercise of authority, and there is nothing that we do to which we give greater attention with reference to the protection of the jurisdiction of the Court and its appropriate exercise.

"The principles are quite obvious. Cases should not go to the Supreme Court of the United States simply because of the amount of money involved, because of the character or prominence of the parties, or because of the counsel. The question before the Supreme Court is, manifestly, the importance of the question of law involved, the importance of an authoritative determination by the tribunal invested with that very important function. We consider these various applications with respect to that, not as to the parties, not as to the amount of money involved, not as to the counsel, but as to the law. The parties have the right of appeal to the circuit courts of appeal. That satisfies the rights of individual litigants. When it comes to a further review by the Supreme Court of the United States, the higher principle of importance to the public at large is involved.

". . . If we are to perform our duty of giving the careful consideration which is required to these very important subjects, we should not be burdened by cases that are not properly before us."

Beyond the practical effect of the 1925 statute in freeing the Supreme Court from an excessive burden is the recognition on the part of Congress that only the Court itself can properly determine which cases it should hear, beyond its elementary constitutional mandate, to carry out its unique function. The jurisdictional act of 1925 and the statute creating the Judicial Conference of the United States go a long way, therefore, toward elevating the courts to their rightful place as a separate and quasi-independent branch of the government.

One other notable reform sought by Chief Justice Taft was not achieved during his lifetime. He pleaded with Congress to allow the Supreme Court to unify the Federal rules of procedure in law and equity. If the courts were allowed to simplify judicial procedure, he argued, the high cost of litigation could be reduced and the delays that so often eviscerated justice could be minimized. But many lawyers found vested interests in the traditional rules carried over from simpler times. Opposition came also from Congress and from some judges. When Congress finally gave its consent, after Taft's death, the Hughes Court ordered an exhaustive study of the rules of procedure in criminal cases and promulgated a new code on criminal appeals in 1934. Then came a broader study by experts of the bench and bar, which resulted in the adoption of the new Federal Rules of Civil Procedures in 1938. The new rules in themselves were a major step in the modernization of our judicial system, and the fact that the Supreme Court presided over the process of shaping them and then put them into effect was another milepost in the movement toward self-regulation within the judicial system.

In a growing country no solution of institutional problems is likely to be permanent. So it has been with the reforms of 1891 and 1925. The 1970s have brought the Supreme Court face to face with new aspects of its old dilemma. Once more it is in danger of being overwhelmed by torrents of litigation that at least beat upon its portals. Sensing new judicial crises, Congress created the Federal Judicial Center in 1968 "to conduct research and study the operation of the courts of the United States." In 1971 the Center assembled a distinguished committee of scholars and lawyers, headed by Professor Paul A. Freund of the Harvard Law School, to delve into the problems of the Supreme Court. That committee came up with the conclusion that the solutions of 1891 and 1925, vital though they were in their own day, have become part of the Court's new problem. "The Courts of Appeals," it reported, "have encountered a dramatic rise in their own business, with a proportionate outflow to the Supreme Court; and the task of coping with the discretionary jurisdiction on certiorari overhangs all of the Court's work.... Remedial measures comparable to those of 1891 and 1925 are called for once again."

In forma pauperis cases filed in the Supreme Court by prisoners and others unable to pay the cost of litigation had increased from 178 in the 1941 term to 1,930 in 1971. In the latter year they constituted more than one-half of the cases filed. The non-ifp cases had multiplied almost by two-and-a-half from 1951 to 1971. The Freund Committee concluded:

"The statistics of the Court's current workload, both in absolute terms and in the mounting trend, are impressive evidence that the conditions essential for the performance of the Court's mission do not exist. For an ordinary appellate court the burgeoning volume of cases would be a staggering burden; for the Supreme Court the pressures of the docket are incompatible with the appropriate fulfillment of its historic and essential functions."

The question raised by this report was how the Justices could possibly find time and ease of mind for research, reflection, consultation in reaching a judgment, critical review of draft opinions, and clarification and revision of such opinions in the light of all that has gone before when they have to dispose of some 3,600 cases a year. Addressing itself directly to the Court's mammoth screening problem, the committee devised a rather drastic proposal--the creation of a National Court of Appeals. The proposed new court would "screen all petitions for review now filed in the Supreme Court, and hear and decide on the merits many cases of conflicts between circuits."

The Freund report aroused a good deal of debate and criticism. It is not the purpose of this article to appraise the report or to join in the debate over the committee's findings and recommendations. Whatever the outcome may be, however, the report served the useful purpose of stimulating discussion and of heightening national awareness of problems comparable to those of 1891 and 1925.

In June 1975, the Commission on Revision of the Federal Court Appellate System published its report calling for a National Court of Appeals of a somewhat different type. This group consists of four members of the Senate, four members of the House, four distinguished lawyers appointed by the President, and four lawyers and judges named by the Chief Justice, with Senator Roman L. Hruska as chairman. It held hearings in various cities and solicited ideas and opinions from the bench and bar in every section of the country. Its factual findings are similar to those of the Freund Committee. One of its conclusions was:

"At the least, the data raise serious questions about the future. They provide no basis for confidence that the Supreme Court can be expected adequately to satisfy the need for stability and harmony in the national law as the demands continue to increase in the decades ahead."

The Hruska Commission agreed with Justice William H. Rehnquist that the real question is not relief for the Supreme Court but "`relief' for litigants who are left at sea by conflicting decisions on questions of federal law." It quoted, with seeming approval, a letter from Chief Justice Warren E. Burger in which he wrote: "[O]ne element of the Court's historic function is to give binding resolution to important questions of national law. Under present conditions, filings have almost "trippled in the past 20 years; even assuming that levels off, the quality of the Court's work will be eroded over a period of time."

Rejecting any solution that would place a greater burden on the Supreme Court and turning away from all proposals for the creation of more specialized courts, the Commission appears to have arrived at its proposal for a National Court of Appeals by a process of elimination. Its conclusion is summarized as follows:

"The proposed National Court of Appeals would be able to decide at least 150 cases on the merits each year, thus doubling the national appellate capacity. Its work would be important and varied, and the opportunity to serve on it could be expected to attract individuals of the highest quality. The virtues of the existing system would not be compromised. The appellate process would not be unduly prolonged. There would not be, save in the rarest instance, four tiers of courts. There would be no occasion for litigation over jurisdiction. There would be no interference with the powers of the Supreme Court, although the Justices of that Court would be given an added discretion which can be expected to lighten their burdens."

There are major differences between the new appellate courts recommended by the Freund study group and the Hruska Commission. The study group favored a National Court of Appeals consisting of seven United States circuit judges in active service who would be assigned to the new court for "limited, staggered terms." The Hruska Commission called for a National Court of Appeals that "would consist of seven Article III judges appointed by the President, subject to confirmation by the Senate, and holding office during good behavior."

More striking is the contrast between the grants of jurisdiction that would be given to the two courts. The Freund study group recommended "that all cases now within the Supreme Court's jurisdiction, excepting only original cases, be filed initially in the National Court of Appeals, preferably on certiorari, but in any event on papers having the same form and content they would have if they continued to be filed in the Supreme Court directly."

The proposed National Court of Appeals (Freund version) would have discretion to deny review, which decision would be final, or to certify a case to the Supreme Court for disposition. The Freund report goes on to say:

"The expectation would be that the National Court of Appeals would certify several times as many cases as the Supreme Court could be expected to hear and decide--perhaps something of the order of 400 cases a year. These cases would constitute the appellate docket of the Supreme Court, except that the Court would retain its power to grant certiorari before judgment in a Court of Appeals, before denial of review in the National Court of Appeals, or before judgment in a case set down for hearing or heard there. The expectation would be that exercises of this power would be exceptional."

The Hruska Commission would have the National Court of Appeals hear cases referred to it by the Supreme Court or transferred to it from the regional Courts of Appeals, the Court of Claims, and the Court of Customs and Patent Appeals. Under this arrangement the Supreme Court would have authority to retain any case before it on petition for certiorari and render a decision on the merits; to deny certiorari, thus terminating the litigation; to deny certiorari and refer the case to the National Court of Appeals for that court to decide on the merits; or to refer the case to the National Court of Appeals, giving it the option to deny review or decide the case on its merits.

What the ultimate response of Congress will be to these recommendations remains to be seen. Once more there is widespread disagreement as to the best course to follow. Ground for optimism may be found, however, in the fact that the Supreme Court's caseload problems are under intensive study and debate and in the further fact that there are historical precedents of far-reaching significance.

Some changes seem to be imperative. The consequences of mere drift in the face of a mounting burden on the Supreme Court which threatens to become unmanageable would be serious indeed in a land dedicated to the concept of a government of law. There is much agreement with Chief Justice Burger's comment in his letter to the Hruska Commission: "I conclude by saying that if no significant changes are made in federal jurisdiction, including that of the Supreme Court, the creation of an intermediate appellate court in some form will be imperative."

Merlo J. Pusey is the author of the Pulitzer prize-winning biography of Charles Evans Hughes.

Copyright 1975, Supreme Court Historical Society