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The Supreme Court's Third Century: Legitimacy, Bureaucracy, and Institutional Change

Published online by Cambridge University Press:  27 December 2018


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Review Essay
Copyright © American Bar Foundation, 1989 

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1 Laurence Tribe, American Constutional Law 8 (Mineola, N. Y.: Foundation Press, 1988).Google Scholar

2 For a summary of these arguments, see Grossman, Joel B., “Judicial Legitimacy and the Role of Courts,” 1984 A. B. F. Res. J. 214. See also Martin Shapiro, Courts (Chicago: University of Chicago Press, 1980).Google Scholar

3 Chayes, Abram, “The Role of the Judge in Public Law Litigation,” 89 Harv. L. Rev. 1285 (1976).CrossRefGoogle Scholar

4 Chayes, Abram, “Foreword: Public Law Litigation and the Burger Court: The Supreme Court, 1981 Term,” 96 Harv. L. Rev. 57 (1982).CrossRefGoogle Scholar

5 Lawrence M. Friedman, “Courts Over Time: A Survey of Theories and Research,” in Boyum & Mather, (eds.), Empirical Theories About Courts 46 (New York: Longman, 1983) (“Friedman, ‘Courts over Time'”).Google Scholar

6 Horowitz, Donald, “The Judiciary: Umpire or Empire,” 6 Law & Human Behavior 141 (1982). See also The Courts and Social Policy (Washington, D. C.: Brookings Institution, 1977). Concededly this emulation is most dramatically seen in institutional reform cases where trial courts must supervise equitable relief in custodial institutions. But it is also a useful insight into the structural evolution of the Supreme Court.CrossRefGoogle Scholar

7 One might also want to explore the reverse application of the principle, namely, the extent to which other institutions have taken on judicial forms and attributes. The test would be the degree to which there has been a significant convergence between and among competing institutions. I am indebted to Steven Puro for suggesting this point.Google Scholar

8 In 1971 Chief Justice Burger appointed a Study Committee on the Caseload of the Supreme Court. The committee was chaired by Harvard Law Professor Paul Freund. Its major recommendation was the establishment of a” National Court of Appeals” to screen certiorari petitions and refer only the most certworthy to the Supreme Court.Google Scholar

9 Following issuance of the Freund Committee report, Congress created the Commission on Revision of the Federal Court Appellate System, the Hruska Commission (known after its chair, Senator Roman Hruska). It proposed creation of a very different kind of national appeals court from that proposed by the Freund Commission. This new court would have heard and decided cases referred to it by the Supreme Court, thus permitting the Court to maintain control of its docket while reducing its workload by relegating important but lesser issues to this new court. A variation of this theme was incorporated into a bill introduced in Congress in 1983, to establish an” Intercircuit Tribunal” to hear certain cases referred to it by the Supreme Court. None of these proposals was ever voted on, and none are currently active; they failed largely because there was-and is-no consensus in the political and legal communities either that a problem exists or that relief might be found in any one of these proposed reforms. For a useful summary of these proposals, see Estreicher & Sexton, ch. 3.Google Scholar

10 Rule 17 (formerly Rule 19) of the Supreme Court's rules is the Court's only official statement of (nonbinding) policy guidelines on when certiorari may be granted: “A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefore. The following, while neither controlling nor fully measuring the Court's discretion, indicate the character of reasons that will be considered….” The rules then suggest three types of certworthy cases: conflict between two courts of appeals or between federal and state courts; conflict between two state courts of last resort over a federal question; and when a state highest court or a federal court of appeals has decided an important question of federal law which should be settled by the Supreme Court.Google Scholar

11 The authors assume that all cases, including those (technically) obligatory cases now heard on appeal, will be collapsed into a single, discretionary certiorari review process. In fact, Congress, after a delay of ten years, finally passed a law in 1988 establishing a consolidated certiorari review process.Google Scholar

12 Dames & Moore v. Regan, 453 U. S. 654 (1981).Google Scholar

13 These are described on pp. 94 ff. One disturbing example of a case that the authors regarded as improvidently granted was Hishon v. King & Spalding, 467 U. S. 69 (1984), which extended Title VII of the 1964 Civil Rights Act to law firm partnership decisions. The authors concede that the lower court decision, in favor of the law firm, was wrongly decided and that the decision was one of national importance. But they argue that the Supreme Court might have been spared the necessity of deciding the case if it had waiced for similar cases to be decided in other circuits, and/or that it would have benefitted from additional courts considering the issue. Are either of these sufficiently compelling reasons for the Court to avoid deciding a case admittedly of national significance?Google Scholar

14 See, for example, Gregory A. Caldeira & John R. Wright, “Organized Interests and the Discuss List in the Supreme Court” (unpublished paper delivered at 1988 Annual Meeting of the American Political Science Association). But cf., per contra, Doris Marie Provine, Case Selection in the United States Supreme Court (Chicago: University of Chicago Press, 1980), who argues that a significant number of votes to grant review are based on nonpolitical factors.Google Scholar

15 United States v. Nixon, 418 U. S. 683 (1974). Also see O'Brien at 215–22.Google Scholar

16 Bob Woodward & Scott Armstrong, The Brethren (New York: Simon & Schuster, 1979).Google Scholar

17 The words are those of Fiss, Owen, “The Bureaucratization of the Judiciary,” 92 Yale L. J. 1461 (1983).CrossRefGoogle Scholar

18 See, for example, Edwards, Harry, “A Judge's View on Justice, Bureaucracy, and Legal Method,” 80 Mich L. Rev. 259 (1981); Rubin, Alvin, “Bureaucratization of the Federal Courts: The Tension Berween Justice and Efficiency,” 55 Notre Dame Law. 648 (1980); Higginbotham, Leon, “Bureaucracy-The Carcinoma of the Judiciary,” 31 Ala. L. Rev. 261 (1980); McCree, Wade, “Bureaucratic Justice: An Early Warning,” 129 U. Pa. L. Rev. 777 (1981).Google Scholar

19 Quoted in O'Brien at 114.Google Scholar

20 Fiss, 92 Yale L. J. at 1442. Fiss, unlike most critics, and contrary to Vining, believes that bureaucratization of the judiciary is inevitable, probably not reversible, and to some degree and in some respects, desirable.CrossRefGoogle Scholar

21 Richard Posner, The Federal Courts 74 (Cambridge: Harvard University Press, 1985).Google Scholar

22 See, for example, Hellman, Arthur, “The Supreme Court, the National Law, and the Selection of Cases for the Plenary Docket,” 44 U. Pittsburgh L. Rev. 521 (1983); and “Error Correction, Lawmaking, and the Supreme Court's Exercise of Discretionary Review,” 44 U. Pittsburgh L. Rev. 795 (1983).Google Scholar

23 Supreme Court clerks are not, however, typical bureaucrats. They are temporary” specialists in law” more than exponents of a particular policy or organizational role. For a useful comparison, see Donald Horowitz, The Jurocracy (Lexington, Mass.: D. C. Heath, Lexington Books, 1977).Google Scholar

24 Heydebrand, Wolf V., “The Context of Public Bureaucracies: An Organizational Analysis of Federal District Courts,” 11 Law & Soc'y Rev. 759 (1977).CrossRefGoogle Scholar

25 Fiss. 92 Yale L. J. at 1452–59 & passim.Google Scholar

26 Friedman, “Courts Over Time,” at 33 (cited in note 5).Google Scholar