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Locomotives and the Supreme Court

Posted on January 27, 2019 in Uncategorized

Things lose their utility with the passage of time. No matter how innovative and useful they were when first invented, most wind up in a scrap pile, or at the very best, in a museum.

Take Kitty Hawk – the first powered airplane in the history of mankind. A major breakthrough in the history of technology, it is of no use today, neither for transportation nor combat. Or how about another technological wonder – the first locomotive, built two hundred years ago that could pull a then-jaw-dropping twenty ton? There is no way for it to haul a today’s train.

Capacity matters. It is not enough to get the concept right; if a centuries-old invention is still to be of use today, its sheer brute power – the wattage that it runs on – needs to be sufficient for today’s tasks.

As far as industry is concerned, that is well understood; no one is trying to use the earliest locomotive to haul the latest train.

But look at law – and you will see a stunningly different picture.

Almost coeval with the first locomotive, the US Supreme Court started its work of giving the nation the ultimate legal guidance when that nation was comprised of five million people – roughly, 60% of today’s population of just the city of New York.

The nation has since grown sixty-fold, to three hundred million. Entire industries that were unheard-of and undreamed-of came into being; America’s lifestyle totally changed; the pace of life dramatically increased, introducing new and yet newer situations that bump against the old constraints and need resolution in the Court. And yet, the physical capacity of the Supreme Court to resolve new issues did not change one bit since the time when the very first locomotive was a grand technological wonder.

The stasis in its capacity is inherent in the very nature of the Supreme Court. Other institutions, be they governmental or private, can increase their capacity when needed by hiring help. The President, for example, deals only with the overall direction of policies but is not personally involved in the minutia of every aspect of every branch of the executive body. That would be physically impossible for him to handle, so he delegates his powers to departments where thousands work on implementing his policies. But the Supreme Court cannot delegate its tasks without defeating its very purpose of having the wisest and best legal minds (singled out as such by the President and confirmed to be such by Congress) deal with the issues brought to Court’s attention. The tasks of selecting cases, of their examination, of coming up with the decisions have to be performed by the justices themselves. Delegate any of these tasks to other, of necessity lesser, minds, and you no longer have the Supreme Court making the Supreme Court’s decisions.

The Supreme Court being of essence a single judge composed of nine individuals, it can bear only as heavy a workload as can be physically handled by any regular judge – a judge who works five days a week, eight hours a day, two thousand hours a year.

Hence, there is a definite physical limit to the number of cases the Supreme Court can possibly consider, as each case requires a lot of work. First, plaintiffs’ papers need to be read, then defendants’, than the decision needs to be made on whether to take the case; and then begins the big task of reading through the entire argument of both sides, of reaching a Court decision, of articulating it in a properly-worded opinion. The amount of time consumed by these tasks ultimately determines the limitations of the Supreme Court workload. Can it hear a million cases a year? No, because that would leave it with only 7.2 seconds per case. Ten thousand that actually get filed? No way – 12 minutes per case is hardly enough to even read a 30-page initial filing. One thousand? That’s better, at two hours per case, thought hardly sufficient to even type up the opinion, leaving alone the reading of hundreds of pages of briefs. Two hundred? At ten hours per case, that’s about adequate – and the actual figure of the cases that the Supreme Court takes annually is actually a bit lower – being less than 2% of the petitions, over 98% being denied.

One hears that the Supreme Court only takes the cases that it considers of constitutional impact, and it is fascinating that the number of “constitutional” cases matches so well the number of cases the Court can physically handle, and that a sixty-fold increase in the number of litigants over the last two centuries did not produce any increase in the number of such cases whatsoever – leaving alone a to-be-expected sixty-fold increase.

And then, there is an equally fascinating discrepancy between the function of the Supreme Court as perceived by the ordinary Americans, and the perception of this function by the justices themselves. Why would one appeal to the Supreme Court if not because he or she feels that the lower courts’ verdict was unjust, and needs to be reversed? Why go to the Supreme Court, if not in pursuit of justice? But astonishingly, the Supreme Court tells us, via its rules that it is not a place where one should come to in order to have an unjust verdict overturned: “A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or misapplication of a properly stated rule of law” – or, translating from legalese into human, “the lower court did not take facts into account, or acted in an arbitrary manner by deciding against you when the law explicitly states that the court should have decided for you? Too bad. We cannot be of help.” One wonders, what is the purpose of the Supreme Court than? Who needs it? Whom does it serve? Whose cases do get considered?

The last of these questions is not a rhetorical one, and has a precise answer. As is always the case with a scarce resource – be it meat in the former Soviet Union or services of the Supreme Court in the United States, connections is everything. When it comes to the all-important stage of selecting the cases that are to be heard, the Court operates strictly along the lines of the “old boys’ network” – precisely as one would expect given the circumstances of high demand and low supply. The inner workings of the Supreme Court are covered in strictest secrecy, lest the lesser mortals get to see legal giants’ clay feet; yet those close enough to be in a position to make highly intelligent guesses if not actually know – like law professor Jeffrey Rosen of George Washington University writing in the New York Times tell us of powerful lawyers – “powerful” because they know the justices personally, having previously served as Supreme Court clerks, whose petitions are much more likely to be taken than those of an average Tom, Dick or Harry; and current clerks are hardly passive bystanders – “the vital task of selecting those few cases [that the Court is capable of considering] is substantially delegated to young law clerks who also help write the justices’ opinions,” we are unequivocally told in a New York Times article by professor Paul Carrington of Duke University Law School. So much for the myth that cases brought before the Supreme Court are decided by the Supreme Court.

This is not to say that the justices are bad people. They operate the way they do of necessity, simply because the sheer lack of physical capacity does not allow them to operate differently. They only do what is natural to do. A Soviet meat salesman was not a bad person either; he would have been perfectly happy to sell meat to everyone – but he just did not have meat for everyone. So he prioritized. Better pieces immediately went to friends and family; the fellow-vendors of other necessities were served next, in a quid-pro-quo arrangement; local authorities took their share immediately after; and the rest of the populace had to just wait in a line for hours, and hopefully, though not necessarily, get something. Justices of the Supreme Court who are dispensing a product which is as scarce, naturally operate in the exact same way. (Though what is not natural is the fact that the Supreme Court managed recently to give one of the precious, less-than-two-hundred-a-year hearings to Guantanamo detainees – while denying over nine thousand, eight hundred fellow-Americans this privilege of being heard.)

Well, but can anything be done about it?

It can. For one, the currently employed legal procedure that is based on individual judges’ “judicial philosophy” and hence is highly arbitrary and subject to gross abuse can be vastly improved upon – as suggested in my previous piece called “Judges, Justice, and a Gulf in Between;” perhaps the key process of selecting cases for Court’s consideration should be made public and entrusted to a different body, not the justices themselves so as to ensure transparency and hence, fairness – so regular people have as good a chance to be heard by the Supreme Court as do the nabobs who can hire justices’ favorite lawyers; even the sheer number of the Supreme Courts should be increased – preferably, 60-fold, in direct proportion to the rise in population – to allow them to adequately meet the needs of the nation instead of truncating those needs, in imitation of Procrustus of Greek mythology, to the physical capacity of the Court.

“This is not the liberty which we can hope, that no grievance ever should arise in the Commonwealth – that let no man in this world expect; but when complaints are freely heard, deeply considered and speedily reformed, then is the utmost bound of civil liberty attained that wise men look for,” John Milton wrote three and a half centuries ago in his immortal Areopagitica; and, it being that the very raison d’ĂȘtre for the courts is to provide people the ability to have their complaints “freely heard, deeply considered and speedily reformed,” courts should be doing just that. But how can this task be accomplished today, when its chief instrument, the Supreme Court of the United States, has neither the capacity, nor interest, to do so?

The Supreme Court of two hundred years ago that still operates today cannot be expected to provide adequate legal services to a nation that had since grown sixty-fold, any more than a two-hundred year old locomotive rolled out of a museum can be expected to pull a today’s freight train. Today’s American has a mere 1.6% of the access to the Supreme Court that his ancestor had two hundred years ago; simply put, we have only one sixtieth of the amount of justice of the first US citizens, all because the Supreme Court ran out of capacity to hear cases long, long ago. The way of fixing the Supreme Court capacity problem, thus making it provide real justice to real people rather than propound once in a while some abstruse “legal principle” as it does today, may not be immediately obvious, but for the sake of us all it needs to be actively sought out – and found.