Locomotives and the Supreme Court


Things lose their usefulness over time. No matter how innovative and useful they were when they were first invented, most end up in a scrap heap or, at best, in a museum.

Take Kitty Hawk, the first powered airplane in human history, for example. A great advance in the history of technology, it is useless today, neither for transport nor for combat. Or how about another technological marvel: the first locomotive, built two hundred years ago that could tow twenty tons that would then blow your mind? There’s no way I’m pulling a train today.

Capacity matters. It is not enough to have the right concept; If a centuries-old invention is still useful today, its sheer raw power, the power with which it works, must be sufficient for today’s tasks.

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

But look at the law, and you’ll see a strikingly different picture.

Around the same time as the first locomotive, the US Supreme Court began its work of providing the nation with final legal guidance when that nation consisted of five million people, approximately 60% of the current population of New York City only.

Since then, the nation has grown sixty times, to three hundred million. Entire industries sprang up that were unheard of and unimaginable; The way of life in the United States changed completely; the pace of life has increased dramatically, introducing new and even newer situations that run up against old constraints and need resolution in court. And yet the physical ability of the Supreme Court to solve new problems has not changed one iota since the days when the first locomotive was a great technological marvel.

The stasis in its capacity is inherent in the very nature of the Supreme Court. Other institutions, whether governmental or private, can increase their capacity when necessary by recruiting help. The president, for example, is concerned only with the general direction of policy, but is not personally involved in the minutiae of every aspect of each branch of the executive body. That would be physically impossible for him to handle, so he delegates his powers to departments where thousands work to implement his policies. But the Supreme Court cannot delegate its tasks without defeating its own purpose of having the best and wisest legal minds (appointed as such by the President and confirmed as such by Congress) to deal with matters before the Court. The tasks of selecting cases, examining them, making decisions must be carried out by the judges themselves. He delegates any of these tasks to other, necessarily lesser minds, and he will no longer have the Supreme Court making the Supreme Court’s decisions.

With the Supreme Court being essentially a single judge made up of nine people, it can only handle as heavy a workload as any ordinary judge can physically handle: a judge working five days a week, eight hours a day, two thousand hours up to date. year.

Therefore, there is a definite physical limit to the number of cases that the Supreme Court can consider, since each case requires a lot of work. First, the plaintiffs’ papers must be read, then the defendants’ papers, then the decision to take the case must be made; and then begins the great task of reading the entire argument on both sides, of reaching a decision of the Court, of articulating it in a properly worded opinion. The amount of time consumed by these tasks ultimately determines the limitations of the Supreme Court’s workload. Can you hear a million cases a year? No, because that would leave you with just 7.2 seconds per case. Ten thousand that actually get filed? No way: 12 minutes per case is barely enough to read an initial 30-page presentation. Thousand? That’s better, at two hours per case, it’s barely considered enough to write the opinion, leaving just reading hundreds of pages of reports. Two hundred? At ten hours per case, that’s about right, and the actual number of cases the Supreme Court takes annually is actually quite a bit lower, with less than 2% of petitions being denied, with more than 98% being denied.

One hears that the Supreme Court only takes cases it deems to have constitutional impact, and it’s 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 in the last two centuries produced no increase in the number of such cases, leaving only an expected sixty-fold increase.

And then there is an equally fascinating discrepancy between the role of the Supreme Court as perceived by ordinary Americans, and the perception of this role by the justices themselves. Why would someone appeal to the Supreme Court if not because he feels that the verdict of the lower courts was unfair and should be overturned? Why go to the Supreme Court, if not in search of justice? But surprisingly, the Supreme Court tells us, through its rules, that it is not a place to go to have an unjust verdict overturned: “A petition for certiorari is rarely granted when the alleged error consists of erroneous errors.” “. factual conclusions or incorrect application of a duly established rule of law” – or, translating from legal jargon to human, “the lower court disregarded the facts, or acted arbitrarily in deciding against you when the law provides explicitly that the court should have decided for you? Pity. We can’t be of help.” One wonders, what is the purpose of the Supreme Court? Who needs it? Who does it serve? Whose cases are considered?

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

This is not to say that judges are bad people. They operate the way they do out of necessity, simply because sheer lack of physical ability does not allow them to operate any differently. They only do what is natural to do. A Soviet meat vendor wasn’t a bad guy either; he would have been perfectly happy to sell meat to everyone, but he just didn’t have meat for everyone. So he prioritized. Best pieces immediately went to friends and family; he then served the fellow vendors of other necessities, in a quid-pro-quo arrangement; the local authorities took their part immediately afterwards; and the rest of the population had to wait in line for hours and hopefully, though not necessarily, get something. The Supreme Court justices who are dispensing a product that is in such short supply naturally operate in exactly the same way. (Though what is unnatural is the fact that the Supreme Court recently managed to grant one of the precious hearings of fewer than two hundred a year to Guantánamo detainees, while denying more than nine thousand eight hundred compatriots this privilege to be heard).

Well, but can anything be done about it?

Can. On the one hand, the legal procedure currently employed which is based on the “judicial philosophy” of individual judges and is therefore highly arbitrary and subject to serious abuse, can be greatly improved, as suggested in my previous article titled “Judges, justice and a Gulf”. between;” perhaps the key process of selecting cases for the Court’s consideration should be made public and entrusted to a different body, not the judges themselves, to ensure transparency and therefore fairness, so that ordinary people have an equal opportunity to be heard by the Supreme Court as well as nabobs who can hire the judges’ favorite lawyers even the total number of Supreme Courts should be increased – preferably 60 times, in direct proportion to the increase in population – to enable them to adequately meet the needs of the nation rather than truncate those needs, in imitation of Procrustus from the Greek mythology, to the physical capacity of the Court.

“This is not the liberty that we may hope for, that no grievance ever arise in the Commonwealth, that no man in this world hope for; but when grievances are freely heard, deeply considered, and speedily reformed, then it is the upper limit of freedom.” civil liability”. the achieved freedom that the wise seek”, wrote John Milton three and a half centuries ago in his immortal Areopagitica; and, since the raison d’être of the courts is to offer people the possibility of having their complaints “freely heard, deeply considered and rapidly reformed,” the courts should be doing just that. But how can they accomplish this task today, when their principal instrument, the United States Supreme Court, has neither the capacity nor the interest to do so? ?

The two-hundred-year-old Supreme Court that still operates today cannot be expected to provide adequate legal services to a nation that has since grown sixty-fold, any more than a two-hundred-year-old locomotive pulled from a museum can be expected to pull a freight train today. The American of today has just 1.6% of the access to the Supreme Court that his ancestor had two hundred years ago; Simply put, we have only one-sixtieth the amount of justice of the first American citizens, all because the Supreme Court ran out of case-hearing capacity a long, long time ago. How to fix the problem of the Supreme Court’s capacity, by having it deliver real justice to real people instead of occasionally proposing some abstruse “legal principle” as it does today, may not be immediately obvious, but for the good of all of us. it needs to be actively sought – and found.