2009 Judiciary Act: Part Four
The professors’ fourth proposal is to alter the certiorari process. The professors write that allowing the Justices to select their own cases makes the Court look like a “robed legislature.” By controlling their docket, the Justices are able to delegate the more basic tasks of adjudication of routine cases to lower courts and focus their efforts on writing new law. This, the professors contend, has contributed to growing unrest of citizens with judicial independence. “The independence of the judiciary is indispensable to the rule of law,” the professors explain, “but it is increasingly difficult to justify absolute independence for Justices whose chief work is expressing and imposing on the public laws on topics of their choice.” Moreover, state supreme courts and lower federal courts have taken a cue from the Supreme Court and likewise delegate routine tasks so that they can write extended opinions on important issues.
The professors propose the creation of a Certiorari Division of the Supreme Court staffed, by rotation, by experienced appellate judges. The Certiorari Division would review petitions for certiorari and select 80-100 cases each year for the Justices. The Justices could reverse some grants of certiorari and also grant certiorari in additional cases but the Court would be required to decide a substantial number of the cases identified by the Certiorari Division.
I am in favor of altering the current process by which the Supreme Court’s docket is set. Law clerks’ reviewing arguments by parties as to why and why not review should be granted is less than an ideal way to set the Court’s tasks. I am also generally sympathetic to the professors’ reliance on experienced appellate judges. Those judges could bring a sophisticated understanding of the law and a (more) reliable sense of when the Supreme Court’s intervention is warranted.
Given that the creation of the Certiorari Division is likely to encounter resistance, I have a different proposal that is easier to implement and addresses many of the professors’ own concerns.
I would transfer to the Supreme Court a random selection of appeals filed in the Courts of Appeals. The cases would be transferred (and their transfer announced) once briefing on them was complete. In those transferred cases, the Supreme Court would therefore review directly the decision of the district court.
Under this proposal, the Justices would decide some run of the mill cases that they themselves had not selected. Instead of a diet of exceptional cases, the Justices would review how legal rules they have crafted operate in routine cases. This experience would likely enhance decision-making when the Justices decide more momentous cases. The proposal would also address the professors’ concern that the Justices look like policy-makers not judges.
The details of my proposal would, of course, have to be worked out. For example, some limit would need to be set on the number of cases reviewed from the district courts (perhaps 30 cases per year is a good target). There is also a question as to whether the entire Court should decide the transferred cases. Perhaps the cases from the district court should be assigned to a three-Justice panel of the Supreme Court, with the possibility of the full Court reviewing that panel’s decision en banc. My proposal could be implemented immediately and with minor expense. The Justices might even like it.