Deciding Not to Decide: The Judiciary Act of 1925 and the Discretionary Court

Abstract

Deciding Not to Decide: The Judiciary Act of 1925 and the Discretionary Court JONATHAN STERNBERG* Introduction: From Obligation to Discretion Americans today are accustomed to a Supreme Court that has nearly unfettered power over its appellatejurisdiction to choose which cases it hears and which it discards. Indeed, in 2004, the Supreme Court granted a mere 85 certiorari petitions out of the 8,593 before it.1 This is a far cry from the early days ofthe Republic when ChiefJustice John Marshall unabashedly declared that the Supreme Court had no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may oc­ cur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our bestjudgment, and conscientiously to perform our duty.2 Undeniably, the jurisdictional framework of Marshall’s time was considerably different from that of the present day. The law of ju­ risdiction under which he and his Brethren la­ bored consisted entirely of one piece of leg­ islation: the Judiciary Act of 1789.3 Besides the limited direction provided in the Constitu­ tion itself, for the first century of the Court’s existence the 1789 Act defined its entirejuris­ dictional universe. By today’s standards, Marshall’s per­ ceivedmandate is striking. Today, the Supreme Court does exactly the opposite ofhis observa­ tion: Given complete discretionover its docket, far more often than not the Court declines to exercise jurisdiction and thus avoids the over­ whelming majority of questions put before it. Despite this clear turnaround from the early Republic’sjurisprudence, today’s Justices rou­ tinely extol what they view as the virtues of 2 JOURNAL OF SUPREME COURT HISTORY the Court’s modem discretion versus the ear­ lier system. Justice Arthur Goldberg believed that “the power to decide cases presupposes the power to determine what cases will be de­ cided,” as well as “the more subtle powerto de­ cide when, how, and under what circumstances an issue should or should not be accepted for review.”4 Justice Thurgood Marshall reasoned that “deciding not to decide is... among the most important things done by the Supreme Court.”5 That is precisely what the Supreme Court increasingly has done throughout the past eighty years: In the vast majority of cases, it has simply decided not to decide. Since 1925, the proportion of certiorari petitions that the Court has granted out of the number put be­ fore it steadily has decreased.6 This represents a profound turnaround from the days when ChiefJustice Marshall could state so emphati­ cally that to decline the exercise ofjurisdiction would be tantamount to constitutional trea­ son. After all, under his reasoning, the highest court in the land would have become a den of traitors! Today, of course, this is hyperbole. How, though, did this sentiment transform from be­ ing included in a unanimous opinion two hun­ dred years ago to seeming so bizarre today? The Supreme Court’s gradual jurisdictional about-face over the past two centuries is owed largely to the efforts of Chief Justice William Howard Taft, who drafted and lobbied for the instrument that made the Court what it is to­ day: the Judiciary Act of 1925.7 Taft had had his eye on sweeping Supreme Court reform ever since he began his public life. Upon be­ coming Chief Justice in 1921, he quickly set about on a campaign to implement those de­ sires, putting forth his arguments for Supreme Courtjurisdictional reform, making promises, anddeclaringpurposes. Succinctlyput, he con­ vinced Congress to agree “to give the Justices of the Supreme Court what [he] had aggres­ sively sought from the momenthe took his seat on the Supreme Court: a far-ranging power to pick and choose which cases to decide.”8 Shortly after the passage ofthe 1925 Act, Taft remarked, “Easily one-half of certiorari peti­ tions now presented have no justification at all,”9 reinforcing his belief that the Act met his underlying purpose ofmaking the Supreme Court’s caseload “clearer and simpler.”10 Al­ though this post-1925 version of the Court is the only one that...