by Montgomery Blair Sibley, ©2014, blogging at Amo Probos

(May 8, 2014) — To put in context the significance of the Supreme Court Conference on Doug Vogt’s Petition on May 15th, I am reproducing Chapter 11 of my monograph on the death of Justice in the United States: The Justidcide Brief.  In sum, Chapter 11 traces the transformation of the Supreme Court from a court of and bound by law to a super-legislature populated by elected-for-life members. Freed from the constraints of the Rule of Law, these Super Legislators, nee, Justices, are now nothing more than Tyrants answerable to no one. Hence, they can with impunity ignore the significant question raised by Vogt’s Petition.

Chapter 11

The Supreme Court May . . .

Since he first entered public life, William Howard Taft – though he was elected President – really wanted to be Chief Justice of the United States Supreme Court.  In 1921, courtesy of President Harding, Taft received that appointment.

As early as 1908, Taft was seeking a new and limited role for the Supreme Court he would ultimate guide into its present-day incarnation: a Supreme Court with: jurisdictional limitations, either in amount in controversy or in the subject matter of suits,” or by “discretionary writ of certiorari.”

Taft was in the minority in calling for these radical changes in a court that was essentially the one envisioned by the founding fathers – a pedigree that few in Congress were willing to tamper with.  “Congress was reluctant to reform many aspects of the federal judicial system because it viewed the Judiciary Act of 1789 as the implementation of the Framers’ vision of an independent and robust judiciary.”

Indeed, in 1910, then Chief Justice Edward White, whom Taft had appointed in 1910, refused to seek congressional action to change the jurisdiction of the Supreme Court, he stated that such change would: “break down the separation of the political branches of government from the judiciary.”

However, as soon as Taft opened his first term as Chief Justice in 1921, he formed a committee of three other Justices to draft legislation to radically change the Supreme Court’s jurisdiction.   In February of the following year, Taft enlisted the support of the American Bar Association by publishing articles the ABA Law Journal in support of his Committee’s proposed legislation.

No previous legislative proposal had sought to make the Supreme Court a purely discretionary court of appeal. To Congress he promised that petitions to invoke such discretion would be given “the most careful consideration,” and that only petitions that were “frivolous” or addressed to principals of law that were “well settled.” would be summarily denied.  In essence, Taft’s argument was similar to that of the scorpion in the fable of the scorpion and the frog: “Trust Me”.

In testimony before Congress in support of what was now known as the “Judges’ Bill”, Taft rejected arguments that the bill gave the Supreme Court “too wide discretionary power” instead again promising that each petition received by the Supreme Court would be “carefully determined by each member of the Court” and “discussed and voted on.”

Otto von Bismarck’s maxim that: “Laws are like sausages, it is better not to see them being made”, was never proven more true than by what happened next. “Almost without discussion”, on February 2, 1925, the House passed the bill.  The Senate passed the bill with only one vote in opposition and President Coolidge signed it into law on February 13, 1925.

William Howard Taft now had the prime seat on and the discretionary jurisdiction Supreme Court he had been seeking for twenty years.  The results would be a profound change from the judiciary envisioned by the Founding Fathers.

In Article III, those Founding Fathers had spelled-out the appellate jurisdiction of the Supreme Court: “the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”  But was “discretionary jurisdiction” and “exception” or a “regulation” that Congress was empowered to make?

In the Judiciary Act of 1925, Congress changed “shall” to “may”: “A final judgment or decree in any suit in the highest court of a State . . . may be reviewed by the Supreme Court upon a writ of error.”  A similar section was made applicable to appeals from the federal district and circuit courts.

Chief Justice Marshall would be mortified for his vision – and that of the Founding Fathers – of the Supreme Court deemed it “treason” to fail to decide a case within the Court’s jurisdiction.

The practical effect of this radical change to discretionary jurisdiction is starkly revealed in the Supreme Court’s own statistics.  In a typical year, some eight thousand (8,000) petitions are filed with the Supreme Court. In 2007, the Court only accepted sixty-seven (67) of those petitions for review and decision –  or only .008%, less than one in a thousand.  Clearly, justice is only for some.

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