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seek review of cases they have lost. The loss seems to them calamitous. Their preoccupation is with the immediate result, or at least their purview is likely limited to their particular work. The Solicitor General must seek a broad perspective of the total law business of the United States, not merely the program of any single agency.
A principal task of the Solicitor General is to determine when not to press for a victory in court, for sometimes a victory may prove more disastrous than a defeat. And what lawyer of experience has not noted that there are occasions when it is wiser to leave a point obscure than to obtain clarification?
Dealing with the agencies is, however, the less difficult part of the job. After listening to them, we can "tell them." Our relation to the Supreme Court presents problems of greater complexity.
The Solicitor General decides-in many instances finally-what questions shall not come before the Supreme Court, and he must therefore address himself to the inquiry, "What kinds of legal problems does the Court wish to entertain?" The Court, as you know, does not customarily declare its reasons for granting or denying certiorari. There are nine minds that have been known to disagree, and none has fully revealed itself. We know that different approaches are possible. One Justice may vote to grant or deny certiorari for one reason, and another may agree with him for an entirely different reason. We are told on the highest authority that denial means nothing more than that four favorable votes were not available. Under these circumstances, how is the Solicitor General to divine the overall plan of the Court in the selection of cases? There is no pat answer, for there are no clear criteria. What is a case for the Court is not precisely measurable. It has to be felt; it cannot be demonstrated. There
are many surprises.
At the beginning of the last term the Federal Power Commission joined with the Phillips Petroleum Co. in petitioning for certiorari to settle an important question as to the jurisdiction of the Commission in the regulation of the naturalgas industry. The petition was denied. Phillips then filed a motion for reconsideration. The Government declined to join in this motion out of deference for the rule which forbids motions for reconsideration except where new matter is to be presented. The Solicitor General's Office is perhaps more scrupulous in observing this rule than are some others. To the surprise of the profession, certiorari, though previously denied, was granted.
Again, a man convicted by the State courts of New York of murdering his parents sought certiorari to raise the validity of his confession. He claimed that with the connivance of State officers a psychiatrist ostensibly called to treat him extracted the challenged confession. Certiorari was denied. Nevertheless, most unexpectedly the Supreme Court saw fit to review the same question when it was raised by the same defendant on habeas corpus in a Federal court.
Shortly after coming to Washington I paid courtesy calls on each of the Justices. No two seemed to have exactly the same standards for certiorari; most of them said frankly that the standards defy formulation. One Justice told me that the sum involved had little weight with the Court, but that he personally was influenced by that factor. I asked him what was the dividing line, and he answered quite seriously that when he saw the Government lose $20 million he thought the case might be worth looking at. confess a personal idiosyncracy.
He spoke this as one might
The Court may reject a case, not because the question is unimportant, but because it thinks the time not ripe for decision. In our system the Supreme Court is not merely the adjudicator of controversies, but in the process of adjudication it is in many instances the final formulator of national policy. It should therefore occasion no wonder if the Court seeks the appropriate time to consider and decide important questions, just as Congress or any other policymaking body might. For example, for several years before taking the school segregation cases the Court repeatedly turned away opportunities to decide questions in that area, perhaps because they deemed them premature. Lately it declined to review a ruling on segregation in public housing, perhaps because the Court thought it best, after deciding the school cases, not to say more on other aspects of segregation at this time. Or the Court may think the record in the case at hand not adequate or otherwise unsuitable to raise and decide the point. We can only speculate. In the decision of great constitutional questions, especially those which are in the realm of political controversy, timing can be of supreme importance.
One can hardly fail to be impressed with the growing finality of the courts of appeals of the several circuits in the disposition of ordinary litigation. The Supreme Court has in late years steadily decreased the number of cases it will consent to hear, limiting the volume of business within its discretionary jurisdiction under the act of 1925. Last term it granted 88 certioraris, as compared with 193 in 1940. Only 8 percent of the petitions filed were accepted as against 22 percent in the earlier year. As to cases heard and submitted there were but 116, while in 1940 there were 204; 10 years earlier there were 267.
Of the 88 certioraris granted 52, or two-thirds of the total, were brought by or against the Government. Of certioraris sought by the Solicitor General only 40 percent were granted-a decline from 80 percent of such petitions granted only a few years ago. It is significant that the Solicitor General himself had severely culled the cases and applied for certiorari in substantially less than half of those in which some Government agency urged him to do so, in fact in about 12 percent of the total cases lost. Still the mortality in the residue was more than half. Private lawyers were successful in only 6 percent of their petitions for certiorari.
Plainly, the Supreme Court does not consider that it would make the best use of its time and energy if it were to serve merely as another appellate court. Almost a quarter of a century ago, Chief Justice Taft declared that a litigant is entitled to 1 appeal, not 2. Even a conflict between the circuits is no infallible assurance of favorable action on a petition. Increasingly the Justices seem to regard their function as that of a gyroscope to keep the ship on an even keel, confining themselves more so than in the past to the consideration of grave national issues.
Tax litigation, so prolific a decade ago, appears now almost dried up. One Justice told me that the place to seek corrections in tax law is Congress, even when a court of appeals seems to have misinterpreted a statutory provision. Nevertheless, at the end of the term earlier this month the Supreme Court unexpectedly granted a whole series of certioraris in criminal net-worth cases and reinstated a number of such cases previously declined.
At the outset I told you that I would not undertake to give final answers, but would discuss the work and its problems. The office is not exempt, for there is no exemption, from the anxieties which attend any serious undertaking. Intertwined with these, however, are deep satisfactions, as you must perceive from what I have already said.
Mr. Justice Jackson, when he was Solicitor General, once told of a letter addressed to "The Celestial General," Washington, D. C., and he rejoiced in the fact that the Post Office had no difficulty in determining that it should be delivered to him. I do not lay claim to "celestial" recognition, but there are solid compensations here; among these are the opportunities for association with able highminded men in the office and elsewhere in the Department of Justice.
I prize a letter which I received from Mr. William Marshall Bullitt who was Solicitor General in President Taft's administration-over 40 years ago. This is what he wrote me:
"If a lawyer desires only professional work, there is not an office in the country, State or National, that is to be compared with the Solicitor General, in the range of subjects to be considered and studied, and in the rare opportunity to argue great cases before the Supreme Court under the most favorable conditions as the representative of the Government.
"It will bring you into relation with that great Court and its members in such a way as to color the rest of your professional life."
If the possibilities of this office are to be realized, the incumbent must strive to learn the meaning of the process he seeks to guide. He must try to discover the social tensions, the reverberations of strife and passion, the political issues, the clashes of interest that are dressed up in technical legal forms. With what wisdom he can muster he must endeavor to foresee the consequences of his acts upon the future course of the law. What is the essence of it all? What spirit can be perceived that stirs this variegated mass of litigation? What does it signify and what does it portend, for good or ill? As the lawyer for the Government and as an officer of the Court acting within the proper limits of his special function, his constant endeavor must be, without falling prey to his own fetishes but obedient to the legislative policy laid down by others, to channel this mighty stream so as to strengthen the foundations of our society, to make freedom more secure and to promote justice between man and man and between the Government .and its citizens.
Mr. SOBELOFF. The suggestion has been made that I was advocating some strange and heretical doctrine of law about the role of the Supreme Court in our system of government. I think what I said is as orthodox as any expression that has ever been made in the long legal history of this country.
I was only saying what every judge and every lawyer knows. was not advocating there any notion that courts have the right to set policy for the Nation over Congress. In fact, the very speech that is brought up contains a denial of that.
For example, in the course of that speech I said-I was talking about the review of administrative action in the courts, and I said: This I see exemplified again and again in the steady stream of papers that flow across my desk.
And I commented:
It is a difficult dilemina: separation of powers
On the one hand is the obligation to respect the
I think that is a refutation of the interpretation that has been put on the other sentence
Senator O'MAHONEY. This was written while you were occupying your present position?
Mr. SOBELOFF. Yes, sir. I had been in office a few months. In fact I called the address Early Impressions. I said:
On the one hand is the obligation to respect the separation of powers, for the disregard of this principle would itself lead to tyranny.
Now, any man who thinks that cannot think what is being attributed to me by these critics. I said:
Personalized judgments to meet particular cases are, we know, fruitful sources of future trouble. We must take care that that which satisfies the felt need today shall not breed confusion tomorrow
and so forth.
And in the concluding sentence of that same speech, I gave recognition to the same idea that the legislative policy of the Nation is paramount, that Congress makes policy. I said, speaking of the duties of my office, and of the variety of litigation:
What does it signify and what does it portend, for good or ill? As the lawyer for the Government and as an officer of the court acting within the proper limits of his special function, his constant endeavor must be, without falling prey to his own fetishes but obedient to the legislative policy laid down by others, to channel this mighty stream so as to strengthen the foundations of our society, to make freedom more secure and to promote justice between man and man and between the Government and its citizens.
I submit that is the very opposite of what has been attributed to me. Senator O'MAHONEY. Let me ask, do you want this committee and the Judiciary Committee to understand that if you were to be confirmed to the position to which you have been nominated, you would not undertake at any time to elevate the court to a policymaking branch of the Government?
Mr. SOBELOFF. I would certainly not alter the form of government, Senator O'Mahoney. I would do what judges who are conscientious and who obey their oaths do: I would confine myself within the judicial sphere.
I have in various expressions, as well as in conduct, indicated my respect for that separation of powers, and it comes as something of a
shock to have a sentence lifted out and a whole theory spun out and attributed to me which is entirely foreign to my thought.
Senator O'MAHONEY. One of the opinions that was attributed to you this morning in the testimony was that you advocated the timing of decisions by the Supreme Court to facilitate the purpose of the decision.
Mr. SOBELOFF. I thank you for calling my attention to that.
Senator, I was not advocating anything there. I was describing the facts of life. Every lawyer knows that the Supreme Court jurisdiction is largely voluntary. Only in a very few instances is there a right of appeal to the Supreme Court. In most instances, application is for certiorari. The Court grants or denies certiorari without giving
I was addressing a group of judges and lawyers, and it is a matter of professional interest for them to understand something about the process, the operation of the Supreme Court. I was indicating that the Supreme Court does what you know and what all of us know it does. În selecting which cases it will hear, it considers, first, the importance of the problem; second, whether there is a conflict between the circuits; thirdly, whether the question is ripe for determination. One of the things that the Justices speak of often in their opinions and in their extrajudicial expressions is whether a certain question is ripe for adjudication.
Why, only last week they refused to decide a question because it was not ripe for determination. They do that every Monday. There is nothing new or startling in that.
Senator O'MAHONEY. May I interrupt you to say that I recall as a young man a great humorist by the name of Finley Peter Dunne, who wrote a column called Mr. Dooley. I read these columns with great avidity, and I remember upon one occasion his saying or putting words in the mouth of Mr. Dooley, the remark, "Even the Supreme Court
follows the election returns.
Perhaps that is what you had in mind.
Mr. SOBELOFF. Senator, don't you think I have got enough troubles now without commenting on that? [Laughter.]
One of my critics here today, Senator, quoted from another speech that I made
Senator WATKINS. Before you leave this one
Mr. SOBELEFF. Yes, sir.
Senator WATKINS (continuing). I want to call your attention to some language that has been criticized and was criticized by witnesses this morning. I assume that is what they were talking about. It is on page 232, the bottom of the first column:
The Court may reject a case, not because the question is unimportant, but because it thinks the time not ripe for decision.
You have already commented on that.
In our system the Supreme Court is not merely the adjudicator of controversies, but in the process of adjudication it is in many instances the final formulator of national policy.
And that is one there has been a lot of criticism on.
Mr. SOBELOFF. That is as true as the statement that 2 and 2 make 4. Senator WATKINS. How do you interpret that language? What is your justification for saying what you said there?
Mr. SOBELOFF. Yes. Let me take, by way of example, a few of the cases that I myself argued in my short tenure as Solicitor General.
The first case that I argued was the case of the Franklin National Bank v. New York. The issue there was as to how far New York could, by statute or administrative action, control the methods of national banks in New York in advertising for savings accounts. And that raised a question of distribution of power between the Nation and the State.
Now, the Court unanimously decided that the attempted regulation there was illegal. There a national policy was declared by the Court. It had to be. There is nothing in any act of Congress that spells it out clearly.
There is a national bank system created by acts of Congress, but that particular problem which was before the Court was not envisaged.
How can the Supreme Court, when it is confronted with conflicting claims under State and national legislation, determine the question? It tries, in interpreting the national policy as laid down by Congress, to see what competing considerations of policy apply. If Congress has spoken clearly, then the Court has no function. If Congress has acted within its scope of authority of the Constitution, the Court has no function except to give force to that, to give effect to that congressional will.
Senator WATKINS. If I understand you correctly, the Court declared under the Constitution what the policy was that would be an abuse of powers on the part of the States.
Mr. SOBELOFF. It declared the national policy as indicated in the Constitution.
Senator WATKINS. And the Court has to declare what is the national policy under the Constitution.
Mr. SOBELOFF. Yes.
Senator WATKINS. That is, when one of those conflicts comes up. Mr. SOBELOFF. Yes. When Congress has, within the exercise of its proper function, indicated a policy, of course the Court is bound by it. Where Congress has exceeded its power, it is the duty of the Court to say so.
John Marshall said that 150 years ago, and it has been said periodically ever since.
Or take, for example, a case involving the authority of the Government here in the District of Columbia to condemn land for redevelopment purposes and for slum clearance. The question was whether, in condemning a whole area, the owner of a piece of property that is itself not a slum could be made to give up that property to this public purpose; and especially whether he could be made to surrender that property, with compensation of course, when the plan called for the redevelopment and the resale of the property to private owners.
Now, there is nothing in any clause of the Constitution which deals with that in terms. There is nothing in any act of Congress which deals with that in terms.
A question was also raised in that very case as to whether redevelopment and condemnation could be employed for esthetic purposes as well as to clear up slum conditions. There isn't any criterion that you can turn to in any act of Congres which gives you the answer..