The Volokh Conspiracy

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Law & Government

Did Congress Give the Court Power to Preselect Questions?

Congress gave the Court power to pick cases, but it never gave the power to pick questions.


This is the third post walking through some of the arguments in my larger essay on the Origins of Supreme Court Question Selection. So far, I've suggested that the Court's practice of preselecting only some questions for review is in tension with the statutory text that requires the Court to decide cases through certiorari. I've also argued that—at least as an original matter—neither the general appellate power nor the common law writ of certiorari empowers the Court to cherry pick questions from cases. A careful reader or Court nerd will observe that there is a clear disconnect between these two points: statutory certiorari is different from common law certiorari. So, let's dig into statutory certiorari.

The Evarts Act and the Judges' Bill

Let's start the story during Reconstruction. Republican reforms after the Civil War led to a massive increase in the workload of the federal courts. Key drivers included the Habeas Corpus Act of 1867 and the Jurisdiction and Removal Act of 1875, which finally provided for federal question jurisdiction. Admiralty cases, railroad litigation, and bankruptcy proceedings crowded the dockets as congressional Republicans looked to the federal courts to help facilitate the party's emphasis on national economic development. The effects on the Court were dramatic. In 1860, the Court had 310 cases on its docket. In 1890, it had 1,816 after including the 623 filed in that year, and it was three years behind on its work.

Congress addressed these problems through the Circuit Courts of Appeals Act of 1891. Known as the Evarts Act, the legislation created the circuit courts of appeals, but for present purposes, the most relevant part of the Evarts Act was the reorganization of the Supreme Court's appellate jurisdiction.

The Act created two buckets of cases. The first set included the types of cases or questions the Court had to review. For instance, cases involving constitutional construction were directed immediately to the Supreme Court for review on a writ of error without passing through the new circuit courts of appeal. Similarly, anytime the jurisdiction of the federal court was in issue, that jurisdictional question alone was—per the statute—automatically certified to the Supreme Court.

The second bucket contained the cases the Court could review. These included run of the mill diversity or criminal cases. In these cases, the circuit court's judgment was final. To allow Supreme Court review of issues involved in these cases, Congress gave circuit courts the power to certify questions to the Supreme Court. But Congress was worried that circuit courts might be lazy or might strategically try to keep some issues from getting to the Supreme Court, so it created the statutory writ of certiorari as a backstop for the Court to use in the rare instance when certification didn't get the issue to the justices.

While statutory certiorari was new, Congress clearly intended it to track common law certiorari. Recall that common law certiorari brought a case to a reviewing court as if on a writ of error. Congress established the same structure for statutory certiorari, saying granting the writ would require the circuit court to "certif[y] to the Supreme Court for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court." The direct link between the statutory writ and the common law writ was immediately clear to the Supreme Court, which recognized that when it granted certiorari it was "in the nature of a writ of error [and] when the writ [was] granted, and the record certified in obedience to it, the questions arising upon that record must be determined according to fixed rules of law."

Initially, the Court complied with Congress' intent that certiorari was meant as a backstop and only rarely granted the new writ. When it did grant certiorari, it reviewed the entire case. Indeed, the Court explicitly reaffirmed that certiorari did nothing to amend the Court's obligations when deciding a case as if on error or appeal. In one of its first cases interpreting the Act, the Court affirmed that "'appeals or writs of error,' must be understood within the meaning of those terms as used in all prior acts of Congress relating to the appellate powers of this court." The Court was explicit that, in appeals, "[A] case cannot be brought to this court in fragments." Accordingly, the Court continued to exercise its obligation to review the entire record for error even if the record or testimony was extensive. And questions the Court explicitly noted were not worth its time were still reviewed because they were part of the case.

Fast forward to 1925. Once again, the Court was overwhelmed with work emerging from Prohibition, the sunset of the Progressive Era, and cancelled wartime contracts. Chief Justice Taft, who had a longstanding interest in judicial reform, pushed Congress to pass the Judges' Bill, which dramatically transformed the Court's docket.

At the congressional hearings on the Judges' Bill, the Justices consistently asserted that certiorari was simply a pathway to traditional review on a writ of error. Justice Van Devanter testified that granting certiorari, like granting a writ of error, implied that the Justices all "underst[oo]d that, in the entire environment of the case, it is one that should be argued at length before them, be considered by them in the light of that presentation and then deliberately decided." He continued, "Granting the writ means, and only means, that the court finds probable cause for a full consideration of the case in ordinary course." Justice McReynolds affirmed that certiorari meant the full case should be "reheard upon its merits." Taft and the other Justices argued for broader discretionary powers in federal cases, especially since certiorari jurisdiction "extend[ed] to the whole case and every question presented in it."

As a result of intense lobbying by the justices, the Judges' Bill became law, and the modern Court was born. The bill shrunk the set of cases the Court had to hear and moved them into the bucket of cases reviewable through certification or certiorari. The Judges' Bill did not change the certiorari mechanism. As before, the Court could use certiorari but it entailed proceeding with "the same power and authority and with like effect as if brought up by writ of error." Thus, even after the Judges' Bill, certiorari gave the Court power to decide "the whole case and every matter in controversy in it," but it did not give the power to preselect a subset of questions for review.

The Court took that power for itself. When and how that happened is the subject of tomorrow's post.