Justice Van Devanter on the Old West:

Mr. Toastmaster, Ladies and Gentlemen: Words hardly enable me to tell you how happy I am to meet you here tonight; how happy I have been to participate in this joint session of the Bar Associations of Montana and Wyoming. These two states, here upon the apex of the continent, are peopled by those who are of the same character and of the same purpose and engaged in the same occupation. I am proud to have come from the Rocky Mountain region, I am proud to be one of you.

The toastmaster indicated to me that the time was limited, and I would have known it even if he had not said so, but I would like to tell you a few things about this country when it was young.

Down at Evanston, they had a prosecuting attorney whose name was Garbonetti. If he was an Italian, it was a long time before. The fellow was an American in every sense. When arguing a case, he sometimes did not put in all of his evidence. One time when he was prosecuting a man arrested for grand larceny, for stealing tobacco from some store, he proved everything up pretty well, except the value of the tobacco. Of course, if the value was not proven, it was petty larceny; and if the value was proven and it was over twenty-five dollars, it would be grand larceny and the penitentiary was the place the defendant would go.

Finally, when he announced that his evidence was in, the defendant's attorney asked the Court to instruct the jury that they could not find the defendant guilty of anything except petty larceny; that there was no evidence of value of the goods stolen. Garbonetti arose and pleaded to be allowed to reopen the evidence and prove the value. The Judge told him that he would do it that time, but he would not do it any more, although the Judge always did, just the same. When they called the tobacconist to the stand Garbonetti said: "You remember you are the owner, and you remember the names of these tobaccos; won't you repeat them again." And he said, "Little Joker, Old Judge" and some other brands that he named. "You know their values, do you." He said "Yes, I know their values." "Well, you may commence now and give their values." The witness, a little bit abashed, said, "I don't know just where to begin. Which one shall I begin with." When Garbonetti said with a little smile, "You may begin with the Old Judge first' the gray haired man with whiskers up on the bench said, "No, Mr. Witness, we will take a little joker first."

Your toastmaster worked a dog into his remarks. I think that my story about a dog is better than his. Down at Laramie, they had quite a devout minister who took an interest in all children. He became almost a parent to them. One day he came around a corner where half a dozen excited little lads were quarreling. He said, "Boys, boys, what is the matter? What is this disturbance?" One of them replied, "This is a strange dog here and they are trying to see who shall have him." The minister said, "Well, how are you going to determine it?" The boy said, "The boy that tells the biggest lie gets the dog." The minister said, "Boys, boys, boys, don't do a thing like that. When I was little like you, I never told a thing like that." "The dog's yours, the dog's yours' a little fellow said."

When I came to this country, Jacob Beeson Blair was an Associate Justice of the Supreme Court of the Territory of Wyoming. He had been in that office some little time and he had letterhead on which he had the scales with the blind goddess and under that it said "Equality under the Law" He did not know a great deal of law, but he was a man with a very good share of that uncommon thing that we call common sense. I practiced before him a great deal, and I sometimes lost and was aggrieved, and sometimes won and was surprised. But it evened up fairly well.

After I went to Washington [and was] on the Supreme Court, I think it was perhaps the first day that I sat on the Court, the Chief Justice said that the next case was the State of Virginia against the State of West Virginia. An array of counsel for each State came up to the bar, and the case started. But before it did, they asked for additional time to submit it, because two states were involved.

The question concerned West Virginia and its separation from Virginia at the time of the Civil War. Virginia was an old state and had a large debt and many public buildings and improvements. At issue was whether or not West Virginia should pay a part of that old debt, and if so, how much. When they admitted West Virginia into the Union, they did so in a little bit of a hurry, and they did not give as much attention to the matter of debt at the time as they might have done. The compact between the two states, as approved by Congress, only indicated that West Virginia should pay a fair proportion of the debt of Virginia.

The argument before the Supreme Court continued, and before long, one of the attorneys produced a speech by Jacob Beeson Blair. Jacob Beeson Blair had been the representative in Congress from that part of Virginia that became West Virginia, and he was very anxious for the admission of West Virginia. At the time admission was being debated, a question was raised as to whether or not this clause concerning debt obligations was sufficiently definite. Somebody said that it was so indefinite that it did not amount to anything. So Congressman Blair delivered himself on the subject, saying it was a very reasonable provision, and as explicit as the situation admitted; that any court of common sense would be able to arrive at how much West Virginia should pay. Well, we took Blair at his word and assessed West Virginia four and one half million dollars. But I thought that it was really quite a coincidence that the speech of a man who had been a Justice here in this territory of Wyoming when I came here, and who later took his seat in Congress, was produced as the chief argument in favor of Virginia against his own West Virginia at the time that I was on the Supreme Court.

It has been a very great pleasure to me to see all of you. I am proud of the Bar of Montana and lam proud of the Bar of Wyoming and my association with both.

Justice Van Devanter on Russia:

Mr. President, Ladies and Gentlemen; I ought not to take your time, yet I could not resist the appeal of your chairman that I say something to you this afternoon. To those who were here yesterday, I expressed my sense of appreciation of the privilege and pleasure of being present; and to those who were not here then but are here now, I repeat that sense of appreciation.

I have listened with a good deal of interest to the addresses that were made today. The one about Russia, and the new Russian Constitution interested me. It is not called "Russia' but the "United States of Soviet Russia."

I have but recently been in Russia and while I will not enter into

an extended discussion of the situation there, I could not help but completely agree with the paper which said that things in Russia were a mystery, and why this constitution was ordained by the ruling power, not the people, was a mystery.

About all that I saw in Russia was a mystery. The things that occur in Russia, and that are of daily occurrence, could not occur here at all. That is one of the questions that I have found as I go here and there. The great body of the Russian people have been serfs or semi-serfs for many centuries. They have been receiving orders and obeying them; and that is what they are doing today. They have not changed at all.

Of the class called the intelligentsia, some are in Siberia; some are dead from execution; and some are restaurant waiters and guides in the principal European cities of the world. It is a term of opprobrium to speak of anyone in Russia as belonging to the intelligentsia, as educated, as having taken the courses that our very esteemed and able friend Dr. Clark has taken.

Most of the work in Russia is done by women. They are less dissipated. They have for centuries given attention to work involving much detail.

There is an electric plant in Moscow is a city of four and one half million people, and ninety-five percent of the people in that electric plant are women. That is because their work is more efficient, because better results are obtained from the labor of women. Unexpectedly, and it was not intended that it should be so, I witnessed about five hundred women building a railroad. It was an additional track, built just as well as we build railroads. They had a good fill, well made, and then they had broken rock on top of that, just the same kind that we ballast our roads with; and then ties such as we have, and then the rails. And those women, without shoes or stockings, strong looking women, a great many of them expectant mothers–that was obvious–were using picks and shovels and packing stone under the ties, and between the ties, and driving the spikes that would hold the rails to the ties. They were not scattered over a vast area. They were in a small space. And off about a hundred feet, were men seated with rifles to see that they did not shirk. Now then, you can't tell me that that is a free country. (Rapping his knuckles on the table.) You can't tell me that that is a country in which they respect and protect personal privilege. They don't.

There are no private automobiles. There are not many automobiles: They are all owned by the government. If you want one, you rent it from the government and you get your chauffeur from the government and the government prescribes the pay. You cannot select your chauffeur. You take the one that is assigned to you, and you take the guide that is assigned to you. To say that that is a land of opportunity; that that is a land where you may, by your own effort, work out your own advancement; to say that is to run contrary to the actual facts.

Everywhere you go, you see women hard at work. I do not care whether it be a depot or whether it be a streetcar–it is women who are performing the work. By the way, the streetcars are all run by women. They are electric streetcars, and the women run them. The women sweep the streets. All over, in the great cities of Moscow and what used to be St. Petersburg, there is dilapidation. The present regime is favoring Moscow to the detriment of St. Petersburg, which was the home of the nobility. It had been a beautiful city, a wonderful city, but it is now being neglected, very greatly neglected.

Now, one other thing; in St. Petersburg there is a great church. As you approach it, you wonder at its magnificence, at the perfection of the building, and as you look at it, I care not whether you are a member of a church and particularly attached to some religious sect, you are particularly affected with the thought that that is a place for the worship of God and it would not be adapted to anything else. But where you go in, there is a side show and a great banner up high which says, "He who believes in God is an enemy of the Soviet state." No doubt about it. There isn't any question of translation or anything of the kind. Although it says it in the Russian tongue, it says it very plainly. That is St. Petersburg.

I was in one other church. It was across from the Kremlin in Moscow It is the oldest church in Russia. It is not particularly attractive because of the magnificence of its construction, but it is attractive because it is the oldest church in Russia–that is, the oldest one now standing–and because it is of a time architecturally that would make it of especial interest now And the same banner was there.

Now, we do not want, of course, under our tradition, to force any particular religion upon any one; but rather, to accord them the fullest freedom in that respect. But in a country where they say that he who believes in God –and they say that on the tabernacles that are erected for the worship of God, "That he who believes in God is an enemy of the Soviet state that is the case of a mill turning backward. It won't grind. The product of it won't wear.

You go across the border into Germany. The Two countries are not friends now There are reasons for that, but in Germany they have, for reasons that you would well understand, taxed everybody until the ordinary sources of taxation are largely exhausted; or so greatly reduced that the volume of tax raising is wholly inadequate. And therefore, they tax things that you would never dream of. (Rapping on the table.) I paid a tax of many marks for the funeral service for my wife there. [Editor's Note: Justice and Mrs. Van Devanter traveled to Europe in 1937. They went first to Russia and then crossed over into Germany. While travelling, Mrs. Van Devanter, nee Dollie Burhans, died in Wiesbaden, hence Justice Van Devanter's remarks about the death taxes which he had to pay in Germany for the funeral services held there for his wife.]

I tell you that countries which follow those lines don't offer good examples for us. They are headed in the wrong direction. We are a different people, differently constituted. Perhaps we would resent being taken in such a direction quicker than other countries would now, but we must not drift into any such direction as that. We have to go on, and go forward along our own lines; and our lines are pretty well marked out in our own constitution.

JUSTICE VAN DEVANTER ON THE SUPREME COURT

I am delighted to be here. It is a great pleasure, and it is a pleasure not only in the personal sense, but it is deeply gratifying to see the substantial development in these Western parts. Wyoming and Montana were both territories when I came West. I can remember that a few years later I attended a meeting of the American Bar Association in Boston, and as I look around here now there were not as many members present at that meeting as there are here today. And yet that Association has come now to include thousands, and its attendance at meetings runs into the thousands.

I have no doubt that you would be glad to have me say something about the Supreme Court of the United States. I shall be very glad to say something about it, but I shall not talk about the phase of it that has recently been of the most interest. To me, that would be inappropriate and I therefore shall let it go unmentioned. All that I might say in that connection would be by illustration or recitation of a story.

There was a literary character, Rupert Hughes, who recently dealt with the life and character of President Washington, the Father of our Country. And he gathered together all that any enemy of Washington had ever said, garnished it some, and put it into a book. It is not worth reading. Then he got somebody to take him to the President, Mr. Coolidge, and present him, and so he was presented to the President. He had not said anything about it, but he had a copy of his book wrapped up and under his arm, and he said to Mr. Coolidge, "I have taken some liberties in describing your first predecessor." And Mr. Coolidge, in his way, said, "Yes, I know" Then Rupert Hughes said, "I have taken the liberty of bringing you a copy of the book," and Mr. Coolidge said, "I have read it." But Rupert Hughes did not stop with that, but went on to say, "Well, what do you think of it." And Mr. Coolidge said, "If you will, just step with me to the window here I will give you the result." He pulled the portieres to the side at the window that opened on the south expanse of the White House, and said, "I came over here when I finished, and I looked out there and I saw the Washington monument, and I saw that its foundations were not disturbed, and it was standing there as a mark by the American people to the greatest man that ever lived in America." That was their whole conversation. (Applause).

The foundations underlying the Supreme Court have not been disturbed. And after a while the flurry that we have had will be forgotten.

But now, let me say something about the Court in other ways. It won't be instructive. It won't be what I would like to say to you. But the first time that I was ever in the court room, Matthew Carpenter, a Senator from Illinois, was arguing a case; and he was having uphill work. A Justice over here interrogated him, and the interrogation indicated that the argument was not a strong one. And the answer did not help. Somebody over there interrogated, and after a while Mr. Carpenter gave up and sat down. Then the gentleman on the other side rose, and he was a bit deaf, and the Chief Justice leaned forward a little bit in a very polite way and he said, "Did you specially wish to be heard." (Laughter) And the man did not catch it quite and he said, turning to Mr. Carpenter, who was sitting there, "Tell me, please, what the Chief Justice said. I do not hear so well." And in a voice which you could hear all over the room, which was not large, Carpenter said, "He said he would rather decide the case in your favor, rather than to hear you." (Laughter)

Now, that is about the largest laugh that I ever heard in court. There was a lawyer from Idaho who came to us once, and he illustrated his argument by telling a story which was particularly humorous; and I cannot remember the story, but I do remember that he upset everybody, and those are the only two occasions that I remember that mirth took possession and had its full swing.

When I went on the Court, Chief Justice White was there. He was nominated for Chief Justice about the same day that I was nominated for Associate Justice. Indeed, I was nominated to be his successor. Now, he had been a Justice of the Supreme Court of Louisiana. He had been conspicuous in the Tilden-Hayes controversy respecting the presidency; and he had been in the Senate. Mr. Cleveland had sent the nomination of Wheeler H. Peckham, from New York, to fill the vacancy caused by the death of Justice Blatchford. And Mr. Hale exercised his prerogative in the Senate and opposed confirmation. Then Mr. William B. Hornblower, of New York, was nominated and that nomination suffered the same fate.

The President, Mr. Cleveland, then sent for Senator White, and he told him that he was about to send his name to fill the vacancy. And the response was, "Why, Mr. President, I do not feel quite equal to that; I hesitate to give my assent, and besides, that is a vacancy from the great Northeast, and it would seem to me that the Empire State would be entitled to the nominee." The President said to him, "I have tried to give it to the Empire State, and I have nominated two excellent men. Now lam going just as far from the Empire State as I can go." And so he sent Senator White's name in and it was confirmed the next working day, as was the rule in those days.

Senator White was a large man. He was a fine civil lawyer. He knew nothing about the common law, and it was a little difficult for him to accommodate himself to common law terms and common law principles; but as he went along he found that each had in it the prototype of what was in the other and that he could get along very well. He was a man of great natural ability and a very practical man. He was a worker and he succeeded admirably as a Chief Justice. He sometimes would soliloquize. Walking on the street he would think of some opinion he was writing. He would think about some difficulty he had just encountered in the course of reading the opinion, and oftentimes he would forget and just burst out and say something. And one of his expressions was, "God help us!" And so, one day in Court some lawyer was arguing a case and he had stated the case and stated the principles he relied upon and the points, and the Chief Justice had weighed all of that, but the attorney proceeded as though it was his duty to occupy all the time that he could, and finally he got to orating some, and the Chief Justice quit him and commenced to thinking about some case, and just then–just then, the attorney announced some proposition that was monstrous, but he brought his fist down on the table. And just as he did that, why, the Chief Justice kind of came to and he said, "God save us!" (Laughter)

Justice Harlan was the Senior Associate when I went on the Court, and one of the odd things was that White, the Chief Justice, had been in the Confederate Army. Justice Harlan had been a Brigadier General in the Union Army, and they sat side by side in the Court. Harlan was a very tall man. He was very well educated as a lawyer. He was a great story teller. He had never had any judicial experience before coming on the Court, nor any other official experience except his experience in the Army. But that had served him well. It had taught him how to deal with men. He was a man with a big heart and liberal views. He had fought on what he thought was the Negro's side. He not only fought to save the Union, but he fought to free the Negroes. And every case that came up, where there was a decision affecting a Negro, if the decision was not in favor of the Negro, he dissented. (Laughter) They were his friends. On the other hand, off the Court, he used to be a professor in Columbia University and so was on the faculty in the law school. And some Negro young men came there and wished to come in, and the matter was submitted to the faculty. Justice Harlan asked that it not come to a vote and he said, "Send those young men to me; have them come to my office tomorrow morning at nine o'clock." Or he said, "Come to my house and I will talk with them, and I will report it to you." I do not know what was said, but you can draw your own inference. They withdrew their applications. That was his way of dealing with such questions. But he was a strong character, a man of great individuality, and he made a wonderfully good Justice.

After him, came Justice McKenna, who seemed in some ways effeminate. I think that he never in his life said aught that hurt anybody, and yet he was an upstanding man of courage, and of real convictions. His primary education had not been as good as those I have mentioned, but he was a very, very high-toned man, a man who was born to be a gentleman, without going to some school to get it. He served a very, very long time.

It may interest some of you to know that he was a Catholic. His name suggests it. He was a devout Catholic. He believed in his church, but I never saw him say or do anything for a moment that would indicate he was trying to do anything for the church; and in litigation, I would say that he was as far removed from any consciousness of purpose to serve the church or those in it as anybody could be. He was intrinsically a fine man.

And then there was Justice Day, who was a strong man in many ways. He came from Ohio. His father was a judge in Ohio. He had been a common pleas judge himself He had also been Circuit Judge, and he had also been Secretary of State. He had had a rich experience in respect to judicial and administrative matters, and that qualified him splendidly for the Court at that period. He had a great deal to do with the treaties and laws that related to the Philippines and Hawaii, and the Canal Zone and all that; and he understood the spirit of all that, and he was always a very steady and very helpful associate. He was given to joking, and sometimes he would say things that were exceedingly interesting. I remember Justice Harlan came into the conference room one day shrugging his shoulders. It was raining and cold, sleeting probably, and Harlan said with some emphasis that this was a very bad day, and no one responded. Then he spied Justice Day sitting there, and he made that same remark to him, and Justice Day said, "Yes, but it is all we have got."

Next after that came Justice Lurton. He had been Chancellor of his State; he had been United States Circuit Judge, and had had wide experience. He was almost sixty-six when he was appointed. He was a very, very industrious man, a great student, and went forward with his work efficiently. He was a Southerner. He had been in the Confederate Army.

And now, it is of interest to all, that the Supreme Court has a human side, not different from others. Lurton spent quite a bit of time at the War Department. He had been captured and was taken up on Lake Erie to some federal prison; he contracted what they thought was tuberculosis. His father was a Tennessean and would not interfere. He would not ask for the boy's discharge. He would not take any step. He was so much for the Confederacy that he would not ask any favor. But the mother came to Washington, and she went to see Mr. Lincoln, and of course, she was denied admittance. She persisted and finally she saw the President and she told him about her son, that the Confederacy ran out of men and they had to take boys. There were a good many boys in the Northern Army, for that matter, but not such a large proportion; and she told the President about her boy up on Lake Erie and those cold winds, and that he had contracted tuberculosis in a federal prison. The President told her that he sympathized greatly with her, but that he could not do anything; that the Confederacy was dealing harshly with the prisoners from the North, and it was difficult to get them exchanged on fair terms; and that his own country was criticizing him very severely for his liberality towards Confederate prisoners in the North. Her heart broke, and she staggered toward the door; and as she got to the door and looked back at him, he said, "Oh, madam, come back." He could not stand it. He took a paper and said to the Secretary of War, "This lady must have her son. I want this reported to me." And she took that note, I do not know where, but I expect to the War Department and the result was that Justice Lurton was released to his mother and she took the boy home. Justice Lurton wanted that paper, and he thought that some officer must have gotten it and made a return on it, and, oh, he wanted that paper with the President's handwriting on it. And while he was a Democrat, and a Southern Democrat, Mr. Lincoln's faith was to him just like the sunlight. That was his recollection.

Next after him came Mr. Hughes, who had been Governor of New York and then was appointed to the Court. I am going to surprise all of you. He did not want to run for the presidency at all. Now, just catch that; he did not want to run for the presidency at all. I know that. We all knew it. He had been a candidate before, at the last convention. He felt that he could not announce that he would take it, that it had not been offered to him, and that he, who had sought it, could not be ugly about it, and his hope was that they would not nominate him. So he prepared a telegram to send to the convention. But he was dissuaded from that, and very greatly against his own will.

He is back on the Court now as Chief Justice, and he is a great worker. He is a very able man. I was the next appointee after him, and on the same day that I was sworn in, Joseph Rucker Lamar of Georgia, was also sworn in as an Associate Justice. There is a little bit of personal interest attached to that, as far as I am concerned. He and I were members of the same college fraternity, and in 1877, we journeyed from Cleveland to Detroit to attend a fraternity convention. We went over on the same vessel. We had never met before, and when we found that we were both delegates to that convention we became very well acquainted. I think it is fair to say that each liked the other. I never saw him again until we went into the court room to take our oaths. He had been a Justice of the Supreme Court of Georgia. He was a Southern gentleman. He was independent. It did not make any difference about the South or politics or anything else. It was with him always, always, always principle. I am mighty sorry that he could not have lived until today. He was a wonderful man.

After him came Justice McReynolds. He is still living and on the Court, and I shall therefore say nothing.

And then came Justice Pitney. He had been Chancellor of New Jersey, and had been a Congressman. he was highly educated and one of the hardest workers I ever saw Killed himself with his work. One day word came over that he had been stricken with paralysis, and that was the same thing that took Justice [Joseph R.] Lamar.

And after that came Justice John Clarke, and the work became too hard for him and he resigned. Then came Justice Brandeis and the others whom you know.

But now, let me tell you something about the work of the Court. When I became a member of the Court, the cases were over eighteen months to two years behind. The docket was that much in arrears. The only way that a case could be resurrected from that heap, except by waiting in turn, was a motion to advance. A state having a case could usually get it advanced. The United States could get some cases advanced, but the United States had so many that it could not advance them all, and once in a while private cases would be advanced because they involved so many issues and affected so many interests but every time you advanced a case it set the ordinary run of the docket back one. It became a great problem as to what we should do. Something was said here this afternoon, by one of your very interesting speakers, about devising methods of improvement in practice. That worried all of the Justices. The burden of those things falls a little more on the Chief Justice than on anybody else, but it worried all of us. Quite often, I don't mean in the majority of cases, but in a great many cases, one of the parties had died before the case could be reached. It probably had been occupying the time of the courts for some time before it ever got to our Court.

It was decided to revise the rules, to revise the equity rules and the rules of our own Court. Our Court made the equity rules for all the federal courts in the United States. And those were revised, and we had to revise them pretty severely.

It became my difficult task to take a hand in that work, and a good deal of work of the committee was put on me. I never devoted more interesting time to anything than I did to that; with the result that suggested rules were adopted with very few changes.

They helped immensely. Then the bankruptcy rules needed revision. Unhappily, I got into that, and then into the admiralty rules, but others were free to help and glad to help. The result of it was that within 18 months we had cases where we were only about six to nine months behind, and for the last five years the Court has been up to date. I don't mean that when it adjourns there is no case on the calendar. I don't mean that. But I mean that every case that is due for argument, due for hearing, has had time for printing the record and filing briefs, when that time is past, the case will have been heard before we adjourned – heard and decided.

My retirement took effect on the last day of this last term. There were no cases carried over. Perhaps I should qualify that this way; there were two or three cases in which one of the judges could not sit, and the vote in the cases was four to four and the feeling was that it was not proper since that would operate as a confirmation of the lower court. So the cases were restored to the docket for reargument, under the assumption that the new Justice might solve the problem in some way, or offer something that would help.

But, the work of the Supreme Court is enormous. It is interesting. It is absorbing. But it is a grind. Eyes give out frequently, and when they don't, you don't get the sleep that you need. In 1925, we concluded that there ought to be a change in the legislation relating to the cases that the Supreme Court should select.

I would like to speak to you about that, because I think it is not known, it is not understood and it is not appreciated. Prior to that, every case in the state court of last resort, and every case in a Circuit Court of Appeals that had a federal question in it could come to us, as of right. Well, that would mean that a great many cases could come that did have a federal question, but the federal question had been decided rightly and had been decided so often that it was time-worn, that is, the main question was. And cases would be brought to us by the unsuccessful litigant, sometimes because he was mad and wanted to succeed, and sometimes because he wanted to wear his opponent out. It furnished an opportunity of putting the one who had succeeded below to great expense, and to great delay. And so, we conceived the thought that if most of the cases were presented to our Court by a petition for certiorari –[now, you for all practical purposes call it a petition for an appeal] so that, we would go over them first to see whether any case was "colorable and if it was, grant the petition. That way we could weed out a large number of would-be cases. If the case was not colorable, the petition would be denied. In that way you saved enormous expense to litigants, and also an enormous amount of time.

For example, here are two men or two institutions, and they have been litigating until pretty nearly everything they have is involved in that litigation. One has won in the trial court of the state and then won in the Supreme Court of the state; maybe it is in the trial court of the federal court system, and a U.S. Court of Appeals. And yet, he would not get the fruits of his victory, notwithstanding it was obvious that the judgment, when it was confirmed, would not result in any change.

You have no idea of how many criminal cases come to us in that way. Almost everybody who was sentenced to be hung conjured up some question that he had been denied some constitutional right, or that a jury trial had been denied. Well, the Constitution of the United States does not guarantee a trial in the state court. It does guarantee a trial by jury in federal court. I could go ahead with many, many instances, but I think that the result of that has been that now, notwithstanding increases in litigation, the cases that actually get to the Supreme Court are not more than sixty percent of what used to actually go there. That helps to keep everything up-to-date, and does save the litigants a very, very great deal.

It seems to be persistently thought that the petitions for certiorari are parceled out, and that those, for instance, of this circuit would go to the justice assigned to this circuit; that he would simply report to the conference, and the conference would follow what he recommended. Now, that is not so at all; and when I say it is not so at all, I want you to understand it is not so in any form. No kind of situation justifies that statement. The petitions are divided into bundles and every petition for certiorari, with the briefs on both sides, and the printed record, goes to every Justice and there are lists of the cases that are going to be called the next Saturday–the conference day–and each Justice gets this list about ten days before the conference and prepares for the meeting. He dictates or writes a little memorandum of what he thinks about it, and the cases are called. The petitions for certiorari are called, for example, and the Chief Justice states the case as he understands it, and what he would do with it. Then he calls on the next man. Of late, it was I because I was the Senior Associate Justice, and it goes on down the line. If three judges would distinctly ask that the petition be granted, it is granted, although it would take five for a majority. It was thought that if three or four judges were influenced by a petition to think that it should be heard, we should resolve the doubt in favor of the petitioner. And as a result, I want to say to you that the Justices were always prepared in those cases.

On occasion, if for one reason or another, the Chief Justice could not open, perhaps because he could not be present at conference, or for some other reason, he would call on somebody else to open that case. They were always prepared and always did. And so I say to you that those petitions for certiorari get very serious consideration by every single member of the Court, and the result is that when a petition for certiorari is denied it means that it would not have had a shadow of a chance if it had come to argument. No, the man who took it there, he might think it had, you might not be able to convince him, because maybe he thought there was a federal question, but the Court might think otherwise.

Now, there might be a situation like this: although the time was ninety days in which to file a petition for certiorari, just about one-fifth of them were filed after the ninety days, notwithstanding. The printing might be two thousand pages. Oftentimes, the briefs would tell you all about a federal question, and would not point to the record to show where they had raised the federal question, and you would look at the record and read your eyes out and would not find any, and you would not find that the Supreme Court of the state dealt with the federal question. But they conjured up one to meet the situation.

And so I want to say to you, with the very greatest candor, and with real emphasis, that the work of the Supreme Court is carefully done, it is thoughtfully done, it is done as well as it could be by the men who do it, and those men are drawn from all quarters of this country, and they are drawn from different walks of life, and the result is that you get a consensus of opinion there that is striking. And if you were to sit in at the conference, or sit through a conference, and see those cases come, the way they are discussed, and so on, you would just marvel at the understanding that the judges have of the cases and the way they have advanced their reasons, and so on.

It is true that there are divisions, but there are not more than five percent of the cases in which there is any division at all. You do not ever hear of the cases where there is no division, and there are not more than two and one-half percent in which there is a dissent by as many as three.

Now, of course, there are some five to four. Numerically there are very few The class of the case is very likely to be one that will' be heralded through every news channel, and maybe that is the only case decided that day that you hear anything about; and sometimes people think that the Court only deals with that kind of case, and with that kind of decision, but of course that is not so.

It is impossible to avoid division. You have heard it suggested that courts should adopt a rule, not a universal rule, but a rule that they recognize and adhere to, of having no dissents. But that would not do. The dissent gives a Justice who does not agree to a prevailing opinion the opportunity to express his views, to express his individuality, and if it was not that way, there would be a good deal of smothering. Just in the course of nature, there would be a good deal of smothering of opinion, and that is not a good thing, and we don't want that. It would be an unhappy situation and it is better to let the public know what is thought and let every judge exercise his individuality. That is very much better in its consequences than any other rule that I can think of

And if I had the words and the time, I would try to paint for you a picture of the Supreme Court in which I would make it the cornerstone, the foundation stone of our government; and I would say that the days of its necessity were never greater than now (Applause, all standing)

PRESIDENT JAMESON: In one respect, at least, the Montana Bar Association is obliged to give full credit and honor to the Wyoming Bar Association in connection with this meeting.

JUSTICE VAN DEVANTER: (interposing) Let me tell you something, please. Something was said about which name would be used first, Wyoming or Montana. There is no opportunity for choice. The states are known according to their seniority. Montana was admitted to the Union before Wyoming. Montana is the senior. Never mind about the alphabet or anything else. Montana is the senior. (Applause)