The Supreme Court's Olmstead Power Grab

Olmstead isn't just a wiretapping case; it's where the Court took the power to preselect questions.

So far, I've tried to establish that, as an historical matter, it was universally understood that the Supreme Court's appellate jurisdiction flowed through the writ of error or appeal. Certiorari, whether common law or statutory, didn't change that, since certiorari simply brought the case to the Court as if on error or appeal. Either way, the Court had to issue a decision that was consistent with the entire record, not just based on review of preselected questions of the justices' choosing.

As we saw yesterday, when Taft and the other justices lobbied Congress for more extensive certiorari powers in 1925, they promised Congress that when the Court granted certiorari, the justices would review "the whole case and every question presented in it." The bill's text, which was in truth drafted by the justices themselves, maintained the explicit link between certiorari and the writ of error. Everyone was in accord. And then came Olmstead.

Olmstead is mostly remembered for its constitutional holding regarding wiretapping. The facts of the case involve a somewhat large conspiracy to traffic in illicit alcohol in Washington State during Prohibition. Without a warrant, federal officials tapped the phones of several key players in the scheme in violation of a state statute. The transcripts from the taps were read to the jury during trial, and the defense objected repeatedly, thus preserving the evidentiary ruling for an eventual appeal on error. The conspirators were convicted and lost their appeal at the Ninth Circuit. The subsequent certiorari petitions included not only the now famous constitutional claims, but they also raised the evidentiary issue. Specifically, the defense argued it was improper to admit evidence obtained in violation of state law.

The defendants had every reason to think the Court would consider both issues if it took the case, since this was the unbroken practice of the Court and the way certiorari-to-error worked, but Taft threw the defendants a curveball. The order granting certiorari "limited consideration" to the constitutional question. The Court did not explain this entirely novel order, much less attempt to justify this striking deviation from statute and tradition.

Nonetheless, writing for a five-member majority, Chief Justice Taft's opinion opened by noting that certiorari was "granted with the distinct limitation that the hearing should be confined to the [constitutional] question." His opinion then held that wiretaps were not searches or seizures under the Constitution. The four dissenters each wrote separately. Brandeis wrote a thorough and colorful dissent arguing that the transcripts should not have been allowed into evidence on both evidentiary and constitutional grounds. Holmes thought the transcripts should be disallowed for evidentiary reasons and the constitutional question avoided. Stone agreed with Brandeis, but wrote separately to assert that the Court's limited grant did not "restrain[] the Court from a consideration of any question which we find to be presented by the record," since the certiorari simply brought the case to the Court "with like effect, as if the cause had been brought [here] by unrestricted writ of error or appeal." Butler, on the other hand, believed that the evidentiary arguments were "not within the jurisdiction taken by the order," so he would ignore them and reverse on the constitutional grounds.

The majority occupied something of a middle ground on this jurisdictional question. It was plainly annoyed at the dissenters for raising the matter of illegally obtained evidence. After explaining the majority's decision on the constitutional question, Taft averred that said explanation "disposes of the only question that comes within the terms of our order granting certiorari." However, since "some of our number, departing from that order, have concluded that there is merit" in arguments about admitting illegally obtained evidence, the majority went on to deal with those questions.

The view of the Olmstead majority seemed to be that the Court could go beyond the order granting certiorari and consider other parts of the record if it wanted to, but the Court did not have to. That is, the majority abandoned the historical understanding—and the justices' promises to Congress—that appellate review after certiorari mandated a comprehensive review of the record. Instead, justices would use certiorari to review what they wanted to when they wanted to.

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So, it turns out the Court's power to preselect questions is not justified by history, text, or congressional intent. Instead, it is a power the Court took for itself without even offering a justification and after promising Congress it would not do this. Once it got away with this, it kept pushing, and the Court accumulated ever more discretion and power. In 1939, it amended its relevant rule governing certiorari petitions to limit review to the questions presented in the petition. It began to treat its mandatory docket as if it were discretionary, effectively ended question certification as a meaningful pathway to review, gave itself more flexibility over cases emerging from the states, and made its original jurisdiction entirely discretionary.

One last bit of irony. Less than one year after Olmstead, the Court granted certiorari in Maryland Casualty v. Jones. Again, its order explicitly limited review to a single question: "whether the Circuit Court of Appeals erred in failing to review the rulings of the District Court in the progress of the trial, excepted to at the time and duly presented by a bill of exceptions." The Court decided it had and reversed.

The Court—proceeding "as if the cause had been brought there by unrestricted writ of error"—reviewed the Ninth Circuit, which was also proceeding on a writ of error. The Court limited review to the question of whether the Ninth Circuit erred in picking its own questions. It then reversed the lower court for failing to review the entire record. In effect, the Court slapped down the Ninth Circuit for doing exactly what the Supreme Court was doing: cherry-picking questions when proceeding according to a writ of error. As we will see tomorrow, this was not the last time the Court made others live up to rules the Court had no hesitation breaking itself.

Comments

[QuantumBoxCat]

To be fair, certified questions came to the court upon a division of opinion among the lower court panel hearing the case. This was a practical measure since the original circuit court panels were generally composed of an even number of judges. If the judges split on a legal question, there wasnt a third panel member to break the tie. So, the question that the judges were divided on could be submitted to the Supreme Court, which would provide an answer to the question.

I believe the new appellate courts created by the Evarts Act were composed of three judge panels. With an odd number of judges it becomes unnecessary to certify questions upon a division of opinion, since the third judge can break the tie and resolve the issue.

[MatthewSlyfield]

" With an odd number of judges it becomes unnecessary to certify questions upon a division of opinion, since the third judge can break the tie and resolve the issue."

Unless they end up with a three way split.

[Stephen Lathrop]

Interesting points of history, with major implications. Unfortunately, until the nation gets out of its political pickle, nothing substantive can be addressed.

[Dilan Esper]

Olmstead is just a fascinating case. You can write a book about it. Olmstead himself was an Al Capone like figure- he operated completely out in the open up in Washington State and was a very famous man. Bootleggers like Olmstead and Capone were greatly embarrassing to the federal government; the basic notion was that while the smarter prohibitionists knew they weren't going to stop some neighborhood Speakeasy, the famous bootleggers were making a mockery of the law.

Olmstead went to some lengths to obstruct federal interference with his operations, which is why law enforcement turned to the then-new technology of tapping and recording his phone calls. When the wiretaps were released to the press and public, it fascinated people- the newspapers called them "the whispering wires".

When Olmstead petitioned for cert, as was customary in Prohibition cases, the opp-cert was written by Mabel Walker Willebrandt, the pioneering woman lawyer who was Assistant Attorney General and who handled all the Prohibition cases. (Seriously, you could also write a book about her.) But when the Court granted cert. on the constitutional issue, Willebrandt was appalled at the prospect of having to argue that wiretaps, which she personally thought were governed by the Fourth Amendment, were not a search or seizure. So she declined the SCOTUS argument.

And of course, in addition to the cert. jurisdiction issue Prof. Johnson discusses, the case produced Brandeis' famous dissent, which later was partially adopted by the Court in Katz v. United States, the 1967 case that finally held that wiretapping was in fact a search. "Our law", Brandeis said, is "the omnipresent teacher". He said that when law enforcement disrespects people's privacy, it cheapens the value for the rest of us.

What a case. It would easily make my top 10 of the most interesting SCOTUS cases in history.