Almost exactly a century ago, in February 1925, Chief Justice William Howard Taft persuaded Congress to grant the Supreme Court an extraordinary power: to pick which cases it would decide.
Most courts do not get to choose the cases they will hear, and their central task is to resolve disputes one at a time. The Supreme Court, by contrast and by dint of the largely unfettered discretion over its docket granted by the Judiciary Act of 1925, understands its job to be quite different: to announce legal principles that will apply in countless cases.
The law effectively changed the court into a policymaking body, and the nation has yet to come to terms with “the immense powers of this new role,” Robert C. Post, a professor at Yale Law School and its former dean, wrote in a new study.
“The transformation has led to an ever-deepening crisis of the court’s authority,” he added.
Justice Neil M. Gorsuch made the key distinction — between resolving individual disputes and setting down broad legal principles — when the court heard arguments in April on Donald J. Trump’s claim, as a former president, of absolute immunity from prosecution.
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“I’m not concerned about this case,” Justice Gorsuch said, adding, “We’re writing a rule for the ages.”
Granting the court the power to set its own agenda has caused it to gravitate toward particular sorts of cases, Karen M. Tani, a law professor at the University of Pennsylvania, argued recently in the annual foreword to The Harvard Law Review.
“The vast discretionary portion of the docket is decidedly not an objective representation of the legal questions that matter most to the American people,” she wrote, adding that “the court’s discretion has flowed along particular channels — toward issues that have preoccupied the conservative legal movement.”
Even as the court agreed to hear cases last term that ended up boosting Mr. Trump’s prospects and dealing blows to federal regulators, Professor Tani wrote, it turned down an alternative slate of cases on questions of urgent concerns to many Americans — like consumer debt, child support and fair housing.
At his confirmation hearings in 2005, Chief Justice John G. Roberts Jr. famously compared judges to umpires, both in the business of calling balls and strikes. The metaphor, Professor Tani wrote, “registers differently when one recognizes that the court also has some ability to field the players, assign the batting order and dictate which pitches can be thrown.”
When the 1925 law was enacted, it was widely viewed as a modest and sensible adjustment that would let the justices focus on important matters.
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Until then, the court’s docket was both dull and crushing. “You little realize the amount of grinding, uninteresting, bone labor there is in writing more than half the cases decided by the Supreme Court,” Justice John Hessin Clarke wrote in 1922 in explaining his resignation after just six years.
But the changes spurred by the law would have deeper effects than workload management, and Chief Justice Taft knew it.
In a 1921 speech, he argued that the Supreme Court was “not a tribunal constituted to secure, as its ultimate end, justice to the immediate parties.” Instead, he said, the court’s job was to make sure the law was uniform across the nation and “to pass on constitutional and other important questions for the purpose of making the law clearer for the general public.”
Just a few years after the law was enacted, Gregory Hankin, a Washington lawyer, identified the deeper meaning of the change in a prescient 1928 article in The Journal of the American Judicature Society. “One might well say,” he wrote, “that the Supreme Court is abandoning its character as a court of last resort, and assuming the function of a ministry of justice.”
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The court led by Chief Justice Roberts has embraced the power granted by the law, Professor Post wrote in his paper, which is still in draft form and will be presented at a symposium next year. “It is this conspicuous lawmaking role, a gift of the Judiciary Act of 1925,” he went on, “that continues to prompt political contention and crisis.”
A new history of the Supreme Court by Stuart Banner, a law professor at the University of California, Los Angeles, is called, fittingly, “The Most Powerful Court in the World.” The book devotes nine pages to the 1925 law, saying it empowered the justices to pursue their policy goals.
“The justices were transformed,” Professor Banner wrote, “from passive recipients of cases to active participants in the making of the law.”
Most courts do not get to choose the cases they will hear, and their central task is to resolve disputes one at a time. The Supreme Court, by contrast and by dint of the largely unfettered discretion over its docket granted by the Judiciary Act of 1925, understands its job to be quite different: to announce legal principles that will apply in countless cases.
The law effectively changed the court into a policymaking body, and the nation has yet to come to terms with “the immense powers of this new role,” Robert C. Post, a professor at Yale Law School and its former dean, wrote in a new study.
“The transformation has led to an ever-deepening crisis of the court’s authority,” he added.
Justice Neil M. Gorsuch made the key distinction — between resolving individual disputes and setting down broad legal principles — when the court heard arguments in April on Donald J. Trump’s claim, as a former president, of absolute immunity from prosecution.
Advertisement
SKIP ADVERTISEMENT
“I’m not concerned about this case,” Justice Gorsuch said, adding, “We’re writing a rule for the ages.”
Granting the court the power to set its own agenda has caused it to gravitate toward particular sorts of cases, Karen M. Tani, a law professor at the University of Pennsylvania, argued recently in the annual foreword to The Harvard Law Review.
“The vast discretionary portion of the docket is decidedly not an objective representation of the legal questions that matter most to the American people,” she wrote, adding that “the court’s discretion has flowed along particular channels — toward issues that have preoccupied the conservative legal movement.”
Even as the court agreed to hear cases last term that ended up boosting Mr. Trump’s prospects and dealing blows to federal regulators, Professor Tani wrote, it turned down an alternative slate of cases on questions of urgent concerns to many Americans — like consumer debt, child support and fair housing.
At his confirmation hearings in 2005, Chief Justice John G. Roberts Jr. famously compared judges to umpires, both in the business of calling balls and strikes. The metaphor, Professor Tani wrote, “registers differently when one recognizes that the court also has some ability to field the players, assign the batting order and dictate which pitches can be thrown.”
When the 1925 law was enacted, it was widely viewed as a modest and sensible adjustment that would let the justices focus on important matters.
Got a news tip about the courts?
If you have information to share about the Supreme Court or other federal courts, please send us a secure tip at nytimes.com/tips.
Until then, the court’s docket was both dull and crushing. “You little realize the amount of grinding, uninteresting, bone labor there is in writing more than half the cases decided by the Supreme Court,” Justice John Hessin Clarke wrote in 1922 in explaining his resignation after just six years.
But the changes spurred by the law would have deeper effects than workload management, and Chief Justice Taft knew it.
In a 1921 speech, he argued that the Supreme Court was “not a tribunal constituted to secure, as its ultimate end, justice to the immediate parties.” Instead, he said, the court’s job was to make sure the law was uniform across the nation and “to pass on constitutional and other important questions for the purpose of making the law clearer for the general public.”
Just a few years after the law was enacted, Gregory Hankin, a Washington lawyer, identified the deeper meaning of the change in a prescient 1928 article in The Journal of the American Judicature Society. “One might well say,” he wrote, “that the Supreme Court is abandoning its character as a court of last resort, and assuming the function of a ministry of justice.”
Advertisement
SKIP ADVERTISEMENT
The court led by Chief Justice Roberts has embraced the power granted by the law, Professor Post wrote in his paper, which is still in draft form and will be presented at a symposium next year. “It is this conspicuous lawmaking role, a gift of the Judiciary Act of 1925,” he went on, “that continues to prompt political contention and crisis.”
A new history of the Supreme Court by Stuart Banner, a law professor at the University of California, Los Angeles, is called, fittingly, “The Most Powerful Court in the World.” The book devotes nine pages to the 1925 law, saying it empowered the justices to pursue their policy goals.
“The justices were transformed,” Professor Banner wrote, “from passive recipients of cases to active participants in the making of the law.”
