With such a large mandatory docket, the Court soon found itself inundated. In 1860, the Supreme Court had 310 cases on its docket and issued decisions in 91. In 1870, the Court had 636 cases on its docket and issued decisions in 280. In 1880, the Court found itself with 1,202 cases on its docket and issued decisions in 365.7 The early Justices found themselves falling years behind and struggling to efficiently process their caseload. Some litigants found themselves waiting for three years before they could be heard.8
In 1891, Congress stepped in to resolve the crisis.9 First, as mentioned, Congress created what we now know as the U.S. Courts of Appeals. It was Congress’s hope that a system of intermediate federal appellate courts would deter parties from seeking Supreme Court review, though those expectations were later dashed. Congress also introduced the now-familiar writ of certiorari. Certiorari enabled the Court to sift through federal appellate court decisions in diversity, patent, revenue, criminal, and admiralty cases, determine which ones were of sufficient importance to warrant review, and exert greater control over its docket.10 Nonetheless, the mandatory appeal docket—those cases that the Court was required to take—was still four times the size of the discretionary certiorari docket. Appeals continued to pile up.11
THE BALANCE DRAMATICALLY SHIFTED with the passage of the Judiciary Act of 1925, commonly referred to as the Judges’ Bill. Chief Justice William Howard Taft was the mastermind behind the legislation from start to finish. A decade earlier, in the wake of losing his 1912 presidential reelection bid, Taft had already called for the Court’s mandatory jurisdiction to be limited to “questions of constitutional construction.”12 He was deeply committed to broadening the Court’s discretion over the cases it would hear. In Taft’s view, at least 60 percent of the Court’s cases lacked any merit and the Court itself should decide which cases were important enough to require a decision.13
At the start of the October 1921 Term, Taft appointed Justices Day, Van Devanter, and McReynolds to a committee responsible for crafting a bill that would reform the Court’s jurisdiction.14 Taft reportedly went so far as to recommend which senators should be placed on the Senate Judiciary Committee to best ensure the bill’s smooth passage.15 He rallied his fellow Justices to support the bill and arranged for their testimony before Congress, aggressively solicited the support of the American Bar Association, and even negotiated compromises in the legislation with Montana senator Thomas Walsh and New York senator Royal Copeland.16
Taft’s extraordinary push was successful. The Judges’ Bill passed and, in hindsight, we can see that 1925 marked the birth of the modern Supreme Court.17
The bill rendered the majority of the Court’s docket discretionary. It removed the possibility of direct appeal to the Supreme Court in most circumstances and transferred substantial numbers of appeals to the certiorari process.18 And in 1988, Congress eliminated nearly all the residual elements of mandatory jurisdiction.19 Today, with only the most minor of exceptions, the Supreme Court is effectively an “all-certiorari tribunal” with full control of its docket.20
Remarkably, the criteria that govern grants of certiorari have remained relatively constant over time. At the turn of the twentieth century, the Court emphasized “the necessity of restraint in granting writs of certiorari,” declaring “that it was only in cases of ‘gravity and general importance’ or ‘to secure uniformity of decision’ that the certiorari power should be exercised.”21 Those same fundamental principles of restraint bind the Court today. The Supreme Court Rules caution that “[r]eview on a writ of certiorari is not a matter of right”22 and that petitions are “rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”23 Rather, the Court requires more pressing reasons, such as a conflict of authority among the lower courts and a significant question of federal law, before it will order full briefing and oral argument on the merits.
AS NOTED EARLIER, THE Court today receives approximately 8,000 petitions, a striking increase from the 5,144 petitions the Court received in 1980 and the 1,321 it received in 1950.24 It grants a mere 1.125 percent—around ninety—each year. The petitions come from a wide range of litigants, from corporations represented by major law firms to prisoners filing handwritten appeals on their own. They appeal from decisions from both state and federal courts across the country. And they run the gamut of legal issues, ranging from questions about complex regulatory schemes set up by federal administrative agencies, to a rancher’s land dispute.
The Court has many internal streamlining processes in place to process the petitions. Most of the Justices have joined a “cert pool,” whereby each of their law clerks is assigned a number of petitions for which to prepare screening memoranda that are circulated among all the Justices, thus pooling their resources and avoiding duplicative efforts.25 When a single Justice, upon reviewing the initial memorandum, believes a case may warrant review, it is listed for discussion at the Conference; all others are filtered out expeditiously. Daunted as I may have been that first day that I entered my chambers and saw the stacks of petitions, I soon found that the Court manages to process petitions in a timely and efficient manner. Long gone are the days when litigants would wait for years in vain for any word from the Court.
No process is perfect. I like to think, however, that today’s Supreme Court Justices, freed of the strictures of mandatory appeals, are able to focus and carefully consider the most important, difficult, and pressing legal issues of the time.
GOLDEN TONGUES
Oral Advocacy Before the Court
LAWYERS WHO APPEAR BEFORE THE SUPREME COURT ARE OFTEN somewhat intimidated by the powers the Justices wield. Because it is the Court’s written opinions that establish the law, it often seems that the Court deliberates about the legal principles, writes the opinions, and delivers its judgments without any outside assistance. It may seem that lawyers exist only to digest and apply the law laid down by the Court.
But the communication between Justices and advocates flows two ways. While the Justices answer the legal questions raised by the parties, the vibrancy of our case law depends upon the assistance the Court receives from the lawyers who appear before it. Lawyers identify and spell out the legal issues. They offer ways to resolve those issues. And at oral argument, they assist the Justices in the task of synthesizing opposing viewpoints.
As the late Chief Justice William H. Rehnquist said, “My colleagues and I disagree among ourselves about many legal questions, but I think that we would all agree that a poorly presented case is apt to be a poorly decided case; therefore, we have reason to hope that litigants before us will do a good job.”1
Oral advocates are charged with the unenviable duty of looking up at nine Justices, each with his or her own significant questions and views about the best way to answer those questions. Oral advocates must present the Court with the strongest arguments in favor of their clients’ positions, while simultaneously recognizing their responsibility to the Court and the country to help shape a consistent, coherent body of law. They must often juggle two or three different lines of questioning in their heads in order to successfully respond to each Justice’s individual concerns.
WHEN THE SUPREME COURT first sat, it undoubtedly faced a multitude of tasks. But given the importance of legal counsel both to the parties who relied upon them and to the Justices who trusted them to present the cases, it is hardly surprising that the first act taken by the Court was admitting lawyers to its practice. On February 5, 1790, only two days after the Justices first met in open session, the first three advocates were admitted to practice before the court. During that term, twenty-five additional men were admitted to practice before the Supreme Court. In the next term, another twenty-nine were admitted. If those numbers seem small, the decade that followed was even more surprising: On average, only five attorneys were admitted per year.
In the Court’s early days in Philadelphia and Washington, the Supreme Court bar was “a club-
like group of local counsel who handled cases in the Court upon referral from counsel elsewhere.”2 It was not unusual for members of Congress to appear before the Court to argue on behalf of private litigants.3
Matters have changed significantly since those early days. The Court has averaged around 4,300 new attorney admissions per year over the last twenty years, more than a hundredfold increase from 1790.
In part, more lawyers have been admitted to practice because our country has grown substantially larger and legal issues have increased in number and in complexity. Just as the first Court could not function until it admitted members of the bar, a history of the Court would be incomplete if it did not look at the relationship that oral advocacy has had with the Court. Oral advocates have helped strengthen the Supreme Court. Without their contributions, our jurisprudence would be poorer.
The most controversial case that the Court decided in its infancy was Chisholm v. Georgia, in 1793.4 Executor Alexander Chisholm claimed the state of Georgia had failed to pay the estate of South Carolina merchant Captain Robert Farquhar for goods he’d delivered during the Revolutionary War. U.S. Attorney General Edmund Randolph argued Chisholm’s case before the Supreme Court. The issue presented—whether Georgia was immune to suit as a sovereign entity—was fundamental in determining the power of state governments in our newly developing nation.
In 1793, only two attorneys were admitted to practice before the Supreme Court. Chisholm was argued before the appointment of Chief Justice John Marshall; it was decided before the seminal cases that helped shape the Supreme Court’s role in our country, such as Marbury v. Madison. The country had not yet recognized the importance of the Court. And so perhaps we can excuse Georgia for not sending a top-notch attorney. It is, however, a little surprising that Georgia elected to send nobody. Georgia was unrepresented by counsel at argument.
It is evident from the opinion that the Court agonized over the question as faithfully as if Georgia had been present. But the matter was difficult. Because it failed to present the opposing view, the odds were slanted against Georgia from the start. It lost. The Court ruled that federal courts could hear cases in law or equity brought by private citizens against states and that states did not enjoy so-called sovereign immunity—protection from being sued—from suits brought by citizens of other states.
In the hue and cry that followed, Congress intervened and passed the Eleventh Amendment to overrule the decision. The amendment stands for the principle of sovereign immunity, providing that the “Judicial power … shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” And since that day, parties with cases pending before the Court have sent the best legal advocate they can find.
One prominent lawyer who often appeared before the Court in the early days of our nation was William Pinkney. Like many excellent oral advocates who followed in his footsteps, Pinkney served as the Attorney General of the United States.5 His specialty was maritime law. Because he started his legal career shortly before war broke out with Britain in 1812, you can imagine that he did a brisk business. He argued eighty-four cases before the Supreme Court.
One of Pinkney’s most important cases was Schooner Exchange v. McFaddon.6 In that case, a ship owned by Maryland merchants was commandeered into the French navy. When the ship landed in Philadelphia, its American owners clamored for its return. Needless to say, the case had important international implications for our fledgling country. On the one hand, a foreign government had taken the property of American citizens. On the other hand, international relationships with France could suffer if the courts ruled against it. Pinkney, at the request of the President, presented the case for the French government.
The case was difficult. In delivering the opinion, Chief Justice Marshall recognized that he was “exploring an unbeaten path, with few, if any, aids from precedents or written law.”7 Marshall’s only guide in crafting that landmark opinion was the oral argument that Pinkney delivered. In presenting the case to the court, Pinkney argued that “when wrongs are inflicted by one nation upon another, in tempestuous times, they cannot be redressed by the judicial department. The right to demand redress belongs to the executive department, which alone represents the sovereignty of the nation.”8
Chief Justice Marshall’s opinion for the Court in Schooner Exchange still serves as a bedrock case in international law.9 That opinion specifically held that U.S. courts lacked jurisdiction over the ship of a foreign state found in a U.S. port, though the case is commonly cited by the Court and other nations for the broader principle that foreign sovereigns enjoy immunity from suit in U.S. courts. Marshall’s opinion gives credit to Attorney General Pinkney’s fine oral argument; Marshall ended his opinion by stating, “If this opinion be correct, there seems to be a necessity for admitting that the fact may be disclosed to the Court by the suggestion of the Attorney for the United States.”10 Such accolades are rarely given by the Supreme Court, and Pinkney must have worn that one proudly. While the Court rarely recognizes advocates in the text of its opinions, Pinkney was only one in a long line of lawyers who have helped guide the Court through murky doctrine and confusing legal issues.
Pinkney typically conducted his oral arguments in court in a fine style. He dressed flamboyantly, and his manner was so proud that he was accused of arrogance and conceit. On one particular occasion, an opponent believed Pinkney had treated him with contempt.11 This young man confronted Pinkney and explained that he had been insulted by Pinkney’s manner. Shocked and surprised, Pinkney agreed to apologize the next morning in Court.
The young man who demanded Pinkney’s respect was none other than Daniel Webster—quite possibly the only oral advocate whose reputation tops that of Pinkney. Webster enjoyed an extremely successful and varied career in politics, including stints as a United States senator and secretary of state. But Webster’s most lasting achievement was arguably his oral arguments before the Supreme Court. Webster argued nearly two hundred cases before the Court. His skills, accomplishments, and influence as an advocate were widely admired. Seth Waxman, who served as Solicitor General under President Clinton, has put the point vividly: “In the realm of advocacy, Webster doesn’t merely sit in the Pantheon: He is Zeus himself.”12 Though Webster was known to pepper his arguments “with classical allusions and rhetorical flourishes,” he was also known for his ability to marshal precedents and historical evidence with skill.13
Photographic print of Daniel Webster. (Photograph Credit 7.1)
Among the prominent cases argued in the early nineteenth century, Webster argued McCulloch v. Maryland, which clarified the federal government’s implied powers to pass laws to implement the Constitution’s express powers in order to create a functional national government.14 Webster also argued Gibbons v. Ogden, a critical case about the scope of Congress’s power under the Commerce Clause.15 All of these important cases are still taught in law schools across the nation because they shed light on the constitutional bounds of the federal government’s powers.
In no oral argument, however, were Webster’s considerable oral gifts on better display than when he argued Dartmouth College v. Woodward in 1818.16 As a graduate of Dartmouth College, Webster had a keen interest in defending his beloved alma mater. After the president of Dartmouth College was deposed by the college’s trustees, the New Hampshire legislature sought to force the college to become a public institution. To determine whether the New Hampshire legislature’s action was valid, the Court had to determine whether Dartmouth’s private corporate charter qualified as a “contract” under the Constitution’s Contracts Clause, which prohibits states from enacting laws that impair contract rights.
Webster opened his argument in Dartmouth College with the following sentence: “Eleemosynary corporations are for the management of private property, according to the will of the donors.”17
This simple opening was
followed by a memorable conclusion: “Sir, you may destroy this institution; it is weak; it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out. But if you do so, you must carry through your work! You must extinguish, one after another, all those great lights of science which, for more than a century have thrown their radiance over our land!… It is, sir, as I have said, a small college—and yet there are those who love it.”18
One contemporaneous observer commented: “[T]he feelings which [Webster] had thus far succeeded in keeping down broke forth. His lips quivered; his cheeks trembled with emotion; his eyes were filled with tears, his voice choked, and he seemed struggling to the utmost to gain that mastery over himself which might save him from an unmanly burst of feeling.”19 Webster closed his argument by analogizing the plight of Dartmouth College to the one confronted by Shakespeare’s Julius Caesar: “When I see my Alma Mater surrounded, like Caesar in the senate-house, by those who are reiterating stab upon stab, I would not, for this right hand, have her turn to me, and say, Et tu quoque, mi filii! And thou too, my son!”
Webster was far from the only person in the courtroom who sought to suppress “unmanly” feelings. Chief Justice Marshall, not a person easily reduced to sentiment, was reported to have had his eyes fill with tears during Webster’s presentation.20 And Justice Joseph Story found Webster’s presentation to be similarly moving. Indeed, Justice Story was so impressed with Webster’s Dartmouth College argument that he suggested it was impossible to capture fully Webster’s “manner and expression, glowing zeal, the brilliant terms of diction, the spontaneous bursts of rebuke …, the sparkling eye, the quivering lip, the speaking gesture, the ever changing, and ever moving tones of the voice, which add such strength and pathos and captivating enchantment to the orator as his words flow rapidly on during actual delivery.”21 Justice Story further recalled: “When Mr. Webster ceased to speak, it was some minutes before anyone seemed inclined to break the silence. The whole seemed but an agonizing dream, from which the audience was slowly and almost unconsciously awakening.”22 While I like to think that I have heard some excellent oral arguments at the Supreme Court, this description makes me wish I had the opportunity to hear Daniel Webster.
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