Further Proof I Have Never had an Original Idea

I just finished a book, Battle for the Marble Palace, review to appear shortly.  In the epilogue, the author mentions that in 1974,  just before his death, Earl Warren gave a speech at Morehouse College, in which he argued against a plan that would have created a "National Court of Appeals" that either I channeled in my sleep or must have read about and then forgotten, because it bears startling resemblance to what I thought was an original idea on my part.  Clearly, it reinforces the certainty that I've never had an original idea. *

This plan, which emerged in the early 1970s, was designed to relieve the "burgeoning caseload" of the U.S. Supreme Court. It was officially recommended in 1972 by the Freund Committee (the Study Group on the Caseload of the Supreme Court) (1), chaired by Harvard Law professor Paul Freund and appointed by Warren’s successor, Chief Justice Burger.

The proposed appellate body would have acted as a "buffer" between the existing Federal Courts of Appeals and the Supreme Court. Its key functions would have included: 

    Initial Screening: The new court would have screened all petitions for certiorari (requests for the Supreme Court to hear a case) and forwarded only a fraction (about 400) of the most "review-worthy" cases to the Supreme Court.

    Finality of Denials: Crucially, if the National Court of Appeals denied a petition, that decision would be final—litigants would have no further path to the Supreme Court.

    Resolving Circuit Conflicts: It would have the power to decide cases where different federal appeals courts had issued conflicting rulings, provided the issues weren't "important" enough for the Supreme Court itself.

Warren believed it would diminish the Court's standing, and that it would take away the right of every citizen to petition the highest court in the land. He was also against other structural changes that were being contemplated following Watergate. 

Specifically Warren said, ""The proposal to create a National Court of Appeals to screen cases for the Supreme Court would not only result in a loss of the Court's control over its own docket but would inevitably lead to a loss of the public's confidence in the Court as the ultimate protector of their rights."  Of course, losing control of its docket was one of the more positive features of the plan, in my opinion, as it would prevent the court from setting a "legislative" agenda, which is happening under the Roberts/Alito/Thomas Court.

I could not find the complete Morehouse Commencement address but found another speech in which he goes after the proposal arguing in part:

"The Supreme Court of the United States has not been immune from the destructive cynicism of our age. No one has yet suggested that it .be abolished outright. But in far more subtle and sophisticated ways, often masquerading under the guise of
procedural reform, there are those in the land who would have the jurisdiction and effectiveness of the Supreme Court substantially weakened. 

After the. mid-winter meeting of the House of Delegates of the American Bar Association, a plan to do exactly this was overwhelmingly endorsed after. a most superficial debate, which omitted any delineation or discussion of the details of the plan. All that we know is that the House of Delegates approved the bare contours of a plan to strip the Supreme Court of some of its vital powers to decide certain types of cases and to transfer those powers to a new court, a Mini Supreme Court.

Vagueness and impreciseness appear to be the hallmarks of the proposal. Even as late as April 1, when one spokesman presented the proposal to the Commission on Revision of the Federal Court Appellate System, the plan was shifting, hauling and tacking in some of its critical details. But, while some of the details may be unclear, the message conveyed has both loudness and clarity. The message is that the Supreme Court should no longer be allowed to exercise all of its authority to adjudicate cases that fall within its jurisdiction. 

The very essence of both proposals is that a new ad hoc tribunal should be established by Congress, a tribunal composed of lower court judges temporarily assigned on a rotating basis.  (2)

I appreciate that Edwin Chemerinsky, to whom I had sent the idea, was kind enough in his reply to simply suggest we didn't need another layer of courts rather than suggest I was just another dummy rehashing the past!

Partially, in my defense, the Judiciary Act of 1925, according to the Report, which permitted the Court to decide itself which cases were to be heard (until then they had to accept all petitions) assumed that the justices would give individual attention to all business brought to the court and receive the individual attention of every justice. (pg v) That has not happened as that responsibility has devolved to the clerk pool, it would seem.

References:

*https://rarebits.blogspot.com/2020/10/fixing-supreme-court-conundrum.html

(1) Freund Committee Report:
https://www.fjc.gov/sites/default/files/materials/44/Report_Study_Group_Caseload_Supreme_Court.pdf

(2) Santa Clara Law Review, Address Delivered by Honorable Earl Warren, Chief Justice of the United States Supreme Court, Retired, at the
Commencement Exercises of the Law School, University of Santa Clara, Santa Clara, Calif. - May 11, 1974 Address, 14 Santa Clara
Lawyer 740 (1974).
Available at: http://digitalcommons.law.scu.edu/lawreview/vol14/iss4/2

Summary of the 1972 Report of the Study Group on the Caseload of the Supreme Court

By the early 1970s, the Supreme Court had a serious problem that everyone could see but no one had really fixed: it was drowning in paperwork. The Study Group’s 1972 report is basically the Court saying, “We can’t keep doing this and still do our job properly.”

The report starts from a simple idea: the Supreme Court isn’t supposed to be just another appeals court. Its job isn’t to fix routine mistakes. Its job is to resolve the biggest legal conflicts in the country, keep federal law uniform, interpret the Constitution, and referee disputes between branches and levels of government. Those things take time, reflection, and real discussion among the Justices. You can’t rush them.

But the numbers show that rushing was exactly what was happening. Over a few decades, the number of cases filed with the Court exploded—especially petitions from prisoners and criminal defendants who couldn’t afford lawyers. By 1971, more than half the Court’s docket consisted of these in forma pauperis filings. Most had no merit, but every single one still had to be read and considered by every Justice. Meanwhile, the number of cases the Court actually heard and decided stayed about the same as it had been years earlier.

The result? The Justices were spending more and more time screening junk and less and less time thinking deeply about the cases that actually mattered. Conflicts between federal appeals courts were piling up unresolved. Cases that earlier Courts would have decided on the merits were now quietly passed over. Even when cases were decided, the report worries that the quality of deliberation was being squeezed by sheer exhaustion.

The report also makes clear that throwing more people at the problem won’t work. Adding more Justices would just mean more people to convince and more opinions to reconcile, without really reducing the burden. Relying more heavily on law clerks helps, but only up to a point. The Justices can’t delegate their core responsibility, and the Court shouldn’t turn into nine little bureaucracies run by staff. The Justices are supposed to deliberate with each other, not just manage memos.

A particularly blunt section deals with prisoner petitions. The report says, in effect, that we’re kidding ourselves if we think prisoners really get meaningful Supreme Court review. What they actually get is a few minutes of attention from an overworked clerk or judge. The authors suggest that it might be more honest—and more humane—to create a specialized system to screen and investigate prisoner claims seriously, instead of pretending the Supreme Court can do it well.

So what’s the solution? The Study Group’s main recommendation is a new institution: a National Court of Appeals. This court would sit between the existing appeals courts and the Supreme Court. Most petitions that now go straight to the Supreme Court would go there first. The new court would throw out the vast majority of cases, send the truly important ones up to the Supreme Court, and decide many inter-circuit conflicts itself. The Supreme Court would still control its docket—but it wouldn’t be buried alive by it.

The authors admit this would mean the Supreme Court giving up some control. But they argue that this is unavoidable. If nothing changes, the Court will still lose control—just in worse ways, by becoming more dependent on staff and less able to do its constitutional job. The report closes with a warning drawn straight from history: the Court has faced crises like this before, and Congress acted in 1891 and 1925. The early 1970s, the authors say, are another one of those moments. If reform doesn’t come, the Court will change anyway—and not for the better.