The Supreme Court’s mandatory jurisdiction is all but gone. On June 27, President Reagan signed legislation that freed the Court from virtually all appeals—cases the justices were at least technically obliged to decide on the merits.
Nine years ago, in the September 1979 issue of the ABA Journal, Eugene Gressman, a co-author of this article, predicted that: "The appellate jurisdiction of the Supreme Court … appears to be at the brink of losing virtually all its … mandatory characteristics. Given the delays and quirks of the legislative process, Congress in the relatively near future seems likely to cloak the Court’s jurisdiction almost entirely in discretionary garb."
The "quirks of the legislative process" delayed the enactment of this legislation—the new law is in most respects identical with bills introduced in 1978 and 1979—for nine years.
But the prediction by Gressman proved true. From now on, except for a handful of rare cases, the only route to the Court is by petition for certiorari.
During the first century of its existence, the Supreme Court, like other appellate courts, decided on the merits all cases appealed to it over which it had jurisdiction. In 1891, when the Court became unable to keep up with its increasing caseload, Congress created the circuit courts of appeals.
At the same time, Congress gave the Court discretionary review authority over appellate decisions in diversity, patent, revenue, criminal and admiralty cases. Parties wishing to appeal such cases would file a petition for certiorari, which the Court could grant or deny without passing on the merits.
When the Court again fell far behind in its work, Congress included in the Judiciary Act of 1925 provisions that transferred most cases subject to Supreme Court review to the Court’s discretionary authority.
Excepted from the discretionary jurisdiction were:
Some appeals from state appellate courts;
Some criminal appeals by the United States;
Appeals in some antitrust cases and suits to review orders of the Interstate Commerce Commission and several other agencies; and
Appeals from three-judge court decisions in suits to enjoin the enforcement of state laws on grounds of federal unconstitutionality (former 28 U.S.C. § 2281).
In 1937, during a time of constitutional challenges to many federal statutes, Congress also provided for direct appeals to the Supreme Court from decisions of any federal court—trial or appellate—holding a federal statute unconstitutional, and of three-judge district courts in suits to enjoin federal laws as unconstitutional.
The direct-appeal provisions in the Criminal Appeals Act of 1907 were the first of these statutes to be repealed, after the Supreme Court had branded the Act as "a failure, … a most unruly child that has not improved with age." United States v. Sisson, 399 U.S. 267 (1970).
At about the same time many of the other obligatory-appeals statutes fell under severe criticism. In 1972, the Study Group on the Caseload of the Supreme Court, appointed by Chief Justice Burger and chaired by Professor Paul A. Freund (Stern was a member of the Study Group and Gressman one of its critics), concluded that direct appeals unduly burdened the Court, and that all cases should be brought to the Supreme Court by certiorari rather than appeal.
In 1974 Congress narrowed, almost to the point of extinction, direct appeals to the Supreme Court in antitrust cases (15 U.S.C. § 29). In 1975 it eliminated the three-judge district courts and direct appeals in Interstate Commerce Commission cases (28 U.S.C. §§ 2342-2350), and in 1976 in the large class of suits challenging the constitutionality of state or federal statutes (28 U.S.C. §§ 2281-2282).
The same 1976 law, however, provided that cases involving the apportionment of congressional districts and state legislatures would still be heard by three-judge courts, with direct appeals to the Supreme Court.
The mandatory appeals remaining after 1976 fell into two principal categories:
1. Appeals from federal court decisions holding federal statutes unconstitutional (28 U.S.C. § 1252), and decisions of U.S. courts of appeals holding state statutes unconstitutional (28 U.S.C. § 1254).
2. Appeals from state court decisions holding federal laws invalid (a very small number), or sustaining state laws against a charge of federal unconstitutionality (a substantial number). 28 U.S.C. §§ 1257(1), (2).
In addition, mandatory appeals were allowed under a number of other statutes:
Two rarely used provisions in the Civil Rights Act of 1964 (42 U.S.C. §§ 2000a-5 and 2000e-6) authorized the convening of three-judge courts on the application of the attorney general in suits for preventive relief against persons discriminating in places of public accommodations and employment.
The Voting Rights Act of 1965 (42 U.S.C. § 1971) also authorized three-judge courts in suits to prevent impairment of voting rights because of race or color. If the attorney general requests a finding of a pattern or practice to engage in such discrimination he may, at the time he files the complaint, request that a three-judge court be convened to hear the case.
This statute differs from the Civil Rights Act in that the defendant may also request a three-judge court. Appeals to the Supreme Court can be taken only from final judgments of the three-judge courts.
The Voting Rights Act also requires the convening of three-judge district courts in the District of Columbia in suits by state or political subdivisions for a declaratory judgment that (a) the plaintiff has not used a test or device to deny the right to vote on account of race or color, or (b) any new or different qualification to voting does not deny or abridge the right to vote on the same ground. 42 U.S.C. § 1970(b) and 1973(c).
Direct appeals to the Supreme Court may be made in such cases.
Amendments to the Voting Rights Act in 1975 also require three-judge courts, with direct appeals to the Supreme Court, in suits by the attorney general to prevent the enforcement of a poll tax, in violation of the 24th Amendment (42 U.S.C. § 1973[h]), and to enforce the 26th Amendment, which extends the right to vote to citizens 18 years of age (42 U.S.C. § 1973[bb]).
A few other statutes provided for direct appeals, non-discretionary review, or both, in special types of cases: the Regional Rail Reorganization Act of 1973, Section 25 of the Federal Insecticide, Fungicide and Rodenticide Act, and the Trans-Alaska Pipeline Authorization Act.
Two related statutes administered by the Federal Election Commission provided for different methods of direct review:
Suits arising under the Presidential Election Campaign Fund Act of 1971 (26 U.S.C. §§ 9010[c] and 9011) were to be heard by three-judge district courts, with appeal to the Supreme Court.
Cases involving the constitutionality of the Federal Election Campaign Act (2 U.S.C. § 437[h]) were to be filed in a single-judge district court, which then was to certify all questions of constitutionality to the court of appeals sitting en banc. The decision of the court of appeals would then be reviewable by the Supreme Court on direct appeal.
Several cases challenging these statutes were heard by an overlapping court consisting of the members of the three-judge court and the judges of the court of appeals en banc, all of whom concurred in the conclusion reached. The Supreme Court found it unnecessary to decide which court had jurisdiction. Buckley v. Valeo, 424 U.S. 1, 9-10 (1976); Clark v. Valeo, 559 F.2d 642 (D.C. Cir.), aff’d 431 U.S. 950 (1977).
The repeal in the 1970s of a substantial number of the mandatory-appeal statutes relieved the Supreme Court of part, but not all, of what it deemed an unnecessary burden. The only remedy upon which there has been general agreement of the entire Court—plus the Judicial Conference of the United States, the Justice Department, the Freund Study Group and the ABA—has been that the Court’s mandatory jurisdiction should be abolished or drastically curtailed.
As the Court explained in a 1982 letter to Congress signed by all the justices in support of a predecessor to the 1988 Act: "The present mandatory jurisdiction provisions permit litigants to require cases to be decided by the Supreme Court of the United States without regard to the importance of the issue presented or their impact on the general public. Unfortunately, there is no correlation between the difficulty of the legal issues presented in a case and the importance of the issue to the general public. For this reason, the Court must often call for full briefing and oral argument [on] difficult issues which are of little significance.
"At present, the Court must devote a great deal of its limited time and resources on cases which do not, in Chief Justice Taft’s words, "involve principles, the application of which are of wide public importance or governmental interest, and which should be authoritatively declared by the final court.’ … The more time the court must devote to cases of this type the less time it has to spend on the more important cases facing the nation. Because the volume of complex and difficult cases continues to grow, it is even more important that the Court not be burdened by having to deal with cases that are of significance only to the individual litigants but of no wide public importance."
The mandatory appeals were only a part of a larger problem facing the Court. In 1925, when most cases were transferred to the Court’s discretionary docket, 750 new cases were filed in the Court; in 1955, 1,644 cases; and in 1985, 4,413. The number of cases that the Court can handle on the merits has long been about 150 each term.
In 1976, after some of the new statutes reducing the types of orders reviewable by mandatory appeal took hold, 311 appeals were filed, the remainder being petitions for certiorari. If any large portion of the appeals had been given plenary treatment, the Court could not possibly have kept up with its docket.
To alleviate this problem the Court has managed to dispose of the bulk of the appeals summarily without full briefing and oral argument. But this created another difficulty. As stated in the Court’s letter:
"Unfortunately, these summary decisions are decisions on the merits which are binding on state courts and other federal courts. See Mandel v. Bradley, 432 U.S. 172 (1977); Hicks v. Miranda, 422 U.S. 332 (1975). Because they are summary in nature these dispositions often also provide uncertain guidelines for the courts that are bound to follow them and, not surprisingly, such decisions sometimes create more confusion than they seek to resolve.
"The only solution to the problem, and one that is consistent with the intent of the Judiciary Act of 1925 to give the Supreme Court discretion to select those cases it deems most important, is to eliminate or curtail the Court’s mandatory jurisdiction."
In 1976, the Court dismissed 94 appeals for lack of jurisdiction. One hundred forty-five of the remainder were decided without opinion, by affirmance or dismissal for want of a substantial federal question. Fifty-six were decided with opinion after oral argument. This left time for only about 100 other cases to be argued, out of the 3,700 to 4,000 petitions for certiorari.
In the 1987 term, which ended three days after the 1988 Act was signed by the president, the Court disposed of 248 appeals, 206 summarily. One hundred twenty were dismissed for lack of jurisdiction and 83 for lack of a substantial or properly presented federal question. Thirty-two were accepted for review.
The principal effect of the 1988 Act is to repeal the remaining laws which had produced almost all of the mandatory appeals in recent years: Sections 1252, 1254(2), and 1257(1) and (2) of Title 28. These sections allowed appeals when federal courts held federal or state statutes unconstitutional, or when state courts held federal laws invalid or state laws valid against a challenge under federal law.
The new act also eliminates the provisions for non-discretionary Supreme Court review under the Regional Rail Reorganization Act, the Insecticide, Fungicide and Rodenticide Act, the Federal Election Campaign Act (but not the Presidential Election Campaign Fund Act) and the Alaska Pipeline Authorization Act. Few, if any, cases had arisen in recent years under any of those laws, none in the last term of the Court.
The new act does not touch the provisions for non-discretionary appeals in reapportionment cases or in cases under the Civil Rights and Voting Rights Acts, the antitrust laws, or the Presidential Election Campaign Fund Act. There have been few such appeals in recent years. Apportionment cases and others relating to elections may arise after each census.
The new statute, combined with its predecessors, should accomplish the court’s objective of eliminating almost all of the mandatory appeals. There were 311 such appeals in 1976, 218 in 1980, and 248 in the 1987 term. The number argued and decided on the merits declined from 56 in 1976 to 28 in both 1980 and 1987. Thirty-two appeals were accepted for review during the last term; none of those appeals would have been appealable under the new statute.
Whether the elimination of the obligatory appeals will save the Supreme Court a great deal of time is open to doubt. The cases in the 1987 term that came to the Court by appeal would not have disappeared from the Court’s docket—they almost certainly would have been presented by petition for certiorari.
In theory the Court should spend less time determining whether or not to grant certiorari than deciding how to dispose of an appeal without oral argument. A justice passing on a petition for certiorari need only determine whether the case contains an issue important enough for the Court to review—which, as a practical matter, means important enough to be one of the 150 cases the Court has time to hear in a term.
A justice deciding whether and how an appeal should be disposed of summarily, on the other hand, must first pass upon the Court’s jurisdiction over the appeal (often a technical and difficult question); and, if the Court has jurisdiction, consider the merits of the case, and whether oral argument is justified. That may require digging into the case more thoroughly than a mere reading of a law clerk’s short memorandum, which is all some justices do in reviewing many petitions for certiorari.
The saving in time may not be very great, however. The Court’s rules specify that both petitions for certiorari and jurisdictional statements for appeals "shall be as short as possible, but may not exceed 30 pages." The same restrictions apply to the opposing documents. The provisions as to what should be included in those documents, as well as in the appendices to be attached to them, are likewise very similar. Thus, the amount of reading material placed before the justices is about the same in both types of cases. Whether they read more or cogitated at greater length for the appeals, only the justices know.
All that can be deduced from the above is that the justices may have taken more time to decide whether to hear an appeal than to grant a petition for certiorari, but not very much more.
Whether the elimination of appeals will save the Court’s time or enable it to hear more important cases on the merits also will depend on how many of the cases heard on appeal would have been accepted on petition for certiorari. A quick reading of the opinions in the 28 appeals argued during the 1987 term gives the impression that discretionary review would have been granted in most of them.
Chief Justice Rehnquist, speaking near the end of the 1986 term, stated that "during the last five Terms of our Court, the cases decided on the merits which came by way of appeal rather than by way of certiorari averaged about 35 per Term. … Perhaps we would have granted certiorari in some of these cases had they come to us that way rather than by appeal. But if you assume that in only half of them certiorari would have been denied, this change would give us some 15 or 20 new slots."
The chief justice’s assumption is somewhat higher than our estimate of the number for which certiorari would have been denied during the last term. But whether the number is 14 or less or 20, the number of slots that would have been made available for other cases is not very great. It could, however, have made room for a substantial number of the admitted conflicts in the courts of appeals which the Supreme Court refused to review.
The new act provides that it shall not affect cases pending in the Supreme Court on the effective date (Sept. 25, 1988), or that seek review of judgments or decrees entered before then. This means that the Court will continue to receive a number of appeals during the fall of 1988 but hardly any thereafter.
There may be some lawyers who mistakenly will take an appeal instead of petitioning for certiorari. Prior to the 1988 Act, Section 2103 of 28 U.S.C. provided that appeals improperly taken to the Supreme Court from the highest court of a state or a federal court of appeals should be "regarded and acted on" as a petition for certiorari. But Section 2103 was repealed by the new act. The Senate Committee Report (No. 100-300, p. 7) stated: "Since mandatory appeals from these courts will no longer exist after enactment of this legislation, Section 2103 is superfluous."
Petitioning for certiorari is simpler than appealing. The Court could reasonably treat a jurisdictional statement filed within the certiorari time limit as merely a mislabeled petition for certiorari, since, as has been noted, the contents of jurisdictional statement and petitions are very much the same. Whether the Court will as a matter of discretion be lenient with a party who wrongly files an appeal instead of a petition for certiorari cannot be foretold.
For a time, at least, no further effort to alleviate the Court’s workload can be expected. Whether anything more will be done will depend on whether the Court, and ultimately the bar, the public and Congress, conclude that the abolition of the Court’s mandatory jurisdiction has been sufficient to solve the Court’s workload problem.
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