Gideon's Trumpet (4 page)

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 Court—the power to select cases for decision—has been expounded by three Chief Justices. William Howard Taft, testifying before Congress on what became the 1925 Act, said:

“No litigant is entitled to more than two chances, namely, to the original trial and to a review, and the intermediate courts of review are provided for that purpose. When a case goes beyond that, it is not primarily to preserve the rights of the litigants. The Supreme Court’s function is for the purpose of expounding and stabilizing principles of law for the benefit of the people of the country, passing upon constitutional questions and other important questions of law for the public benefit.”

Hughes put the same thought more succinctly in his letter to Senator Wheeler: “Review by the Supreme Court,” he said, “is in the interest of the law, its appropriate exposition and enforcement, not in the mere interest of the litigants.” And in 1949 Chief Justice Fred M. Vinson, addressing the American Bar Association, told the lawyers: “To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution
will have immediate importance far beyond the particular facts and parties involved. Those of you whose petitions for certiorari are granted by the Supreme Court will know, therefore, that you … represent not only your clients, but tremendously important principles, upon which are based the plans, hopes and aspirations of a great many people throughout the country.”

Cases come to the Supreme Court of the United States from a variety of sources: From the judicial systems of the fifty states; from the eleven United States Courts of Appeals, the intermediate federal appellate courts, each in a circuit covering a section of the country; from specialized federal tribunals, like the Court of Claims and the Court of Customs and Patent Appeals, and in unusual instances from the eighty-nine federal trial courts, the district courts.

More than ninety percent of the cases filed in the Supreme Court are brought by petitions for certiorari. There is still a limited class of matters that one has an absolute right to appeal to the Supreme Court of the United States. For example, a district-court decision on an antitrust suit brought by the Government is reviewable not in the Court of Appeals but only on direct appeal to the Supreme Court. In theory, the Supreme Court may not simply refuse to consider cases brought by appeal. In practice, the Court has developed ways to dispose of most of them summarily, without hearing argument or giving them extended consideration. Many appeals are dismissed “for want of a substantial federal question,” or for other reasons showing that the Court considered the issue trivial or the lower court’s decision plainly correct. In short, the Court has virtually complete freedom to select the approximately one hundred and fifty cases to which it will give a full hearing each term, out of more than twenty-five hundred filed.

What are the rules of this winnowing process? How does a petition for certiorari qualify? In granting or denying petitions the justices ordinarily give no reasons at all; if they had to, much of the burden-relieving purpose of the discretionary certiorari jurisdiction would be defeated. Number 19 of the Supreme Court’s rules does give some examples of persuasive reasons for granting petitions: “Where a state court has decided a federal question of substance … in a way probably not in accord with applicable decisions of this court. Where a [federal] court of appeals has rendered a decision in conflict with the decision of another court of appeals on the same matter.…” But Rule 19 warns that its examples are not controlling, and it says: “A review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor.”

The reasons for denying a petition for certiorari may have little or nothing to do with the merits of the legal claim it argues. That is why various justices have tried to educate the public to the fact that denial of a petition does not constitute approval of the lower-court decision that the petitioner wanted reviewed. (The educational process has not been much of a success; when the Court denies a certiorari petition in an agitated case, such as that of Mississippi’s Governor Barnett, too many newspaper headlines still read: “Supreme Court Upholds Order Against Barnett”) All the denial means, in fact, is that the Court did not want to hear the case. That could be so even though the justices thought the lower-court opinion wrong—if, for example, the record of the case was so confused or inadequate that it did not seem an appropriate vehicle for resolution of the legal issue. Or, most significantly, considerations of timing could be involved. The law of the
Constitution, like all law, develops slowly, and there are great currents of change that can be felt. The Court may believe it unwise to tackle a new question too soon, before the lower courts have had a chance to consider it and throw light on the problem. Or a claim, however sincerely pressed, may be out of time, out of the current of the law, as are the occasional petitions these days from southern officials in effect seeking to reverse the momentum of desegregation. Or, finally, some of the justices may feel strongly that a judgment should be reversed but despair of obtaining a majority; they might then prefer denying certiorari to taking the case and having the Supreme Court’s imprimatur put on the outcome they so dislike. If certiorari is denied, there is always the chance that when the issue comes along another time, minds or even the membership of the Court will have changed. Such factors explain the comment of Justice William J. Brennan, Jr.: “Very often I have voted to deny an application when I thought that the [lower] court’s result was very wrong.”

Clarence Earl Gideon’s petition for certiorari inevitably involved, for all the members of the Court, the most delicate factors of timing and strategy. The issue he presented—the right to counsel—was undeniably of first-rank importance, and it was an issue with which all of the justices were thoroughly familiar. Year after year since 1942 the Court had struggled to apply the rule of
Betts v. Brady
: that only in special circumstances were impoverished criminal defendants entitled to free counsel; few legal problems could have been so continuously on the justices’ minds and consciences. And
Betts v. Brady
was not, like the School Segregation decision, a precedent to which the Court was so firmly committed that a plea for reconsideration was an obvious waste of time. Professional comment on the Betts
case, in the law reviews, had always been critical and was growing stronger, and within the Supreme Court several justices had urged its overruling. On the other hand, a majority might well draw back from so large a step, especially if a new rule requiring counsel in all criminal cases were to be applied to men already in prison; in an earlier counsel case Justice Felix Frankfurter had warned that “such an abrupt innovation as recognition of the constitutional claim here … would furnish opportunities hitherto uncontemplated for opening wide the prison doors of the land.” Was it wise for the Court to change its mind so drastically after two decades? Was a majority now prepared to do so? Was this the appropriate case? These were some of the questions inherent in No. 890 Miscellaneous,
Gideon v. Cochran
, as it began its course through the process established in the Supreme Court for consideration of petitions for certiorari.

J
ustice Brandeis is credited with the comment that “however much one could criticize the Supreme Court of the United States, it endured and deserved its place in our political structure because it did its own work.” That is no small claim in the city of Washington, where few high officials write their own speeches or even their own letters. Alone among the great institutions in Washington the Court seems to have escaped Parkinson’s Law—the thesis that the number of employees in any office continually increases and the work expands to occupy the new hands. The work at the Supreme Court is still done by nine men, assisted by eighteen young law clerks. Nothing is delegated to committees or task forces.

Indeed, what the Court turns out is not an institutional product in the sense that the work of Executive Departments is. In the Justice Department, for example, a legislative proposal would be drafted in rough by junior lawyers, worked over by more experienced hands, scrutinized by section chiefs, approved by one or more assistant attorneys general and the deputy attorney general, and finally put before the Attorney General for his approval. It is a hierarchical system, necessarily and appropriately.

At the Supreme Court there is no hierarchy. Even the Chief Justice is only, as has been said, “first among equals.” He has symbolic and administrative pre-eminence, for example presiding over the sessions of the Court and over the Judicial Conference of the United States, which includes representatives of all the federal courts. But in the business of the Supreme Court his influence depends entirely on his moral and intellectual power to persuade. Each justice has one vote, and it is in the keeping of his own mind and conscience. Each works largely on his own, with his law clerks when he chooses, and the result is that there really are nine separate law offices—different in work habits as well as in philosophy. Justice Jackson said: “The fact is that the Court functions less as one deliberative body than as nine, each justice working largely in isolation except as he chooses to seek consultation with others. These working methods tend to cultivate a highly individualistic rather than a group viewpoint.”

Each justice is responsible for every case that comes before the Supreme Court. There is no division of labor among committees or panels. This is a fact that has long escaped public understanding. Even some lawyers seem to think the petitions for certiorari are divided up among the justices. Chief Justice Hughes complained of this misconception
as long ago as 1934: “I find that some think that applications for certiorari are distributed among the justices ratably, that is, one-ninth to each justice.… Now the fact is that all matters calling for action by the Court in the disposition of cases are dealt with by all the members of the Court.… All the Justices pass upon all the applications for certiorari.”

As a mechanical matter, petitions for certiorari in the ordinary case are handled as follows. The party seeking review is required to file forty printed copies of its petition. (The Court’s rules are most particular about printing: All printed documents filed in the Court must be 6⅛ inches by 9¼ in size, with type no smaller than 11-point, “adequately leaded,” and the paper “opaque and unglazed.”) The other side has thirty days to file a brief in opposition to the grant of review. To prevent the justices from forming any views on a case before both sides are available, the practice is to have the Clerk’s Office hold each petition for thirty days and then distribute it together with the brief in opposition if one has been received. One copy goes to each of the nine offices. There individual practices set in.

Most justices, but not all, have their law clerks look over each petition (and the opposing response) and prepare a brief memorandum summarizing the issues. This fact led to an inflated view of the law clerk’s role. Justice Jackson joked about it, saying he detected a suspicion at the Bar that “the law clerks constitute a kind of junior court which decides the fate of certiorari petitions.” More recently Justice Tom C. Clark remarked that he had been “asked by prominent lawyers, who should know better, to please speak to my law clerks about their petitions.”

The law clerks to the individual justices are not to be confused with the permanent employees in the office of
the Clerk of the Supreme Court. The former assist a justice for a year or two, working for him personally—not for the Court as a whole. They are bright young men who are at most a few years out of law school, where they stood near the top of the class and probably were on the law review. Almost all federal and many state judges now have law clerks, and the competition is intense for the honor of a clerkship, especially in the Supreme Court. There each justice selects his clerks by his own method, one delegating the job to a professor at his old law school, another to a committee, others making the choice themselves after interviewing applicants. Many Supreme Court law clerks have gone into teaching, and they are among the country’s most respected legal scholars. Others have become prominent in public office (Secretary of State Dean Acheson was clerk to Brandeis), in business (the late Irving S. Olds of United States Steel clerked for Holmes), and on the bench (Justice Byron R. White was clerk to Chief Justice Vinson).