Things lose their usefulness over time. No matter how innovative and useful they were when they were first invented, most of them end up in a scrap heap or, at best, in a museum.
Take the Kitty Hawk, the first powered aircraft in human history, for example. A great advance in the history of technology, it is useless today, neither for transportation nor for combat. Or how about another technological marvel: the first locomotive, built two hundred years ago that could tow twenty tons that would blow your mind then? There’s no way I’m pulling a train today.
Capacity matters. It is not enough to have the correct concept; If a centuries-old invention is still useful today, its sheer raw power, the power with which it runs, should be enough 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 startlingly different picture.
At about 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 was made up of five million people, roughly 60% of the current US population. only New York City.
Since then, the nation has grown sixty-fold, to three hundred million. Entire industries sprang up that were unheard of and unimaginable; The lifestyle of the United States changed completely; the pace of life increased dramatically, introducing new and even newer situations that collide with old limitations 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 time when the first locomotive was a great technological marvel.
Stasis in its capacity is inherent in the very nature of the Supreme Court. Other institutions, whether government or private, can increase their capacity when needed by contracting 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 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 to implement his policies. But the Supreme Court cannot delegate its tasks without defeating its own purpose of having the wisest and best legal minds (appointed as such by the President and confirmed as such by Congress) to deal with the issues 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 minds, necessarily lesser, and he will no longer have the Supreme Court making the decisions of the Supreme Court.
The Supreme Court being essentially a single judge made up of nine people, it can only support 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, as each case is very labor intensive. First, the documents of the plaintiffs must be read, then those of the defendants, then the decision to take the case must be made; and then begins the great task of reading the entire argument of both sides, of arriving at a decision of the Court, of articulating it in a properly drafted 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 only 7.2 seconds per case. Ten thousand that are really archived? No way: 12 minutes per case is barely enough to read an initial 30-page presentation. One thousand? That’s better, at two hours per case, it is hardly considered enough to write the opinion, leaving only the reading of 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, being less than 2% of petitions, with more than 98% being denied.
You hear 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 anyone appeal to the Supreme Court if not because he feels the lower court’s verdict 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 unfair verdict overturned: “Rarely is a writ of certiorari granted when the alleged error consists of erroneous errors.” “. factual findings or misapplication of a duly established rule of law” – or, translating from legal to human jargon, “the lower court disregarded the facts, or acted arbitrarily in ruling 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 is always the case 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 cases to be heard, the Court operates strictly along “old man’s network” lines, precisely as might be expected given the circumstances of high demand and low supply. The inner workings of the Supreme Court are shrouded in the strictest secrecy, unless little mortals get to see the feet of clay 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, like George Washington University law professor Jeffrey Rosen writing in the New York Times, tells us about powerful lawyers : “powerful” because they know the justices personally, having previously served as Clerks of the Supreme Court, whose petitions are much more likely to be accepted than those of your average Tom, Dick, or Harry; and current employees are hardly passive bystanders: “the vital task of selecting those few cases [that the Court is capable of considering] substantively delegated to junior paralegals who also help write judges’ opinions,” Professor Paul Carrington of Duke University Law School tells us unequivocally in a New York Times article. that cases brought before the Supreme Court are decided by the Supreme Court.
This does not mean 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 seller was not a bad person 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; then he served his fellow vendors 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, but not necessarily, get something. Supreme Court justices who are dispensing a product that is so scarce 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 less than two hundred a year to Guantanamo detainees, while denying more than nine thousand eight hundred compatriots this privilege of being heard).
Well, but can anything be done about it?
Can. On the one hand, the currently employed legal procedure 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 thus fairness, so that ordinary people have an equal opportunity to be heard by the Supreme Court as well as the Nabob 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 Procrustes of Greek mythology, to the physical capacity of the Court.
“This is not the freedom we can expect, that no grievance ever arise in the Commonwealth, that no man in this world expects; 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 give people the ability to have their complaints “freely heard, deeply considered and speedily reformed,” the courts should be doing just that. But how can this task be accomplished today, when its main instrument, the United States Supreme Court, has neither the ability nor the interest to do so? ?
The two-hundred-year-old Supreme Court that is still operating 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 plucked from a museum can be expected to pull a freight train today. Today’s American 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 for early American citizens, all because the Supreme Court ran out of capacity to hear cases a long, long time ago. How to fix the Supreme Court’s capacity problem, by having it deliver real justice to real people instead of proposing some abstruse “principle of law” from time to time 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.