Locomotives and Supreme Court

August 30, 2021 0 Comments

Things lose their usefulness over time. No matter how innovative and useful they were when they were first invented, most end up in a junk heap or, at best, a museum.

For example, Kitty Hawk, the first powered airplane in human history. A great advance in the history of technology, it is useless today, neither for transport nor for combat. Or how about another technological marvel: the first locomotive, built two hundred years ago, that could pull a staggering twenty tons? There is no way I can transport a train today.

Capacity matters. It is not enough to have the correct concept; If a centuries-old invention can still be used today, its sheer raw power, the power with which it works, must be sufficient for today’s tasks.

As far as industry is concerned, this is well understood; no one is trying to use the oldest locomotive to transport the last train.

But look at the law, and you will see a strikingly different picture.

Around the same time as the first locomotive, the United States Supreme Court began its work of providing the nation with definitive legal guidance when that nation was comprised of five million people, roughly 60% of the current population of just New York City.

Since then, the nation has multiplied by sixty, reaching three hundred million. Entire industries sprang up that were unheard of and never dreamed of; America’s way of life changed completely; the pace of life increased dramatically, introducing new and even newer situations that clash with the old limitations and need a resolution in the Court. And yet the physical ability of the Supreme Court to solve new problems did not change one iota from the days 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 governmental or private, can increase their capacity when necessary by hiring help. The president, for example, deals only with the overall direction of policy, but does not personally participate in the details of all aspects of each 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 purpose that the wisest and best legal minds (designated as such by the President and confirmed by Congress) deal with the issues that are brought to the attention of the Court. The tasks of selecting cases, examining them, and making decisions must be carried out by the judges themselves. Delegate any of these tasks to other minds, necessarily lesser ones, and you 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, can only bear a workload as heavy as any ordinary judge can physically handle: a judge who works five days a week, eight hours a day, two thousand hours a day. year.

Therefore, there is a definite physical limit to the number of cases the Supreme Court can consider, as each case requires a lot of work. First, the plaintiffs ‘documents must be read, then the defendants’ documents, then the decision must be made on whether to take the case; and then the great task of reading the entire argument of both parties begins, of arriving at a decision of the Court, of articulating it in a duly 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 actually archived? No way: 12 minutes per case is barely enough to read an initial 30-page presentation. Thousand? That’s better, at two hours per case, which is not considered long enough to even write the review, leaving only the reading of hundreds of pages of abstracts. Two Hundred? At ten hours per case, that’s enough, and the actual number of cases that the Supreme Court takes annually is actually a little lower, it’s less than 2% of petitions, more than 98% are denied.

You hear that the Supreme Court only takes cases it considers to be of constitutional impact, and it is fascinating that the number of “constitutional” cases matches so well the number of cases the Court can physically handle, and that it has multiplied by sixty times. . the number of litigants during the last two centuries did not produce any increase in the number of cases of this type, leaving only an expected increase of sixty times.

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 appeal to the Supreme Court if not because you feel the lower court verdict was unfair and should be reversed? 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 one should go to have an unfair verdict set aside: “A petition for a writ of certiorari is rarely granted when the claimed error consists of in an erroneous error, factual conclusions or incorrect application of a duly established rule of law “- or, translating from legal language to human”, the lower court did not take the facts into account, or acted arbitrarily in making a decision in its Against when the law explicitly states that the court should have decided it for you? One wonders, what is the purpose of the Supreme Court it? Who needs it? Who does it serve? What 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, be it meat in the former Soviet Union or Supreme Court services in the United States, connections are everything. With regard to the very important stage of selection of the cases to be heard, the Court operates strictly along the lines of the “network of old men”, precisely as might be expected given the circumstances of high demand and scarce supply. The inner workings of the Supreme Court are covered in the strictest secrecy, lest lesser mortals get to see the clay feet of legal giants; However, those close enough to be in a position to make very intelligent guesses if they don’t really know – as George Washington University law professor Jeffrey Rosen writing in the New York Times tells us of powerful lawyers – “powerful “Because they know the justices personally, having previously worked as clerks to the Supreme Court, whose petitions are much more likely to be served than an average Tom, Dick, or Harry; and current employees are not passive bystanders: “the vital task of selecting those few cases [that the Court is capable of considering] it is substantially delegated to young legal secretaries who also help to draft the judges’ opinions, “says Professor Paul Carrington of Duke University School of Law unequivocally in a New York Times article, decided by the Supreme Court.

This is not to say that judges are bad people. They operate the way they do out of necessity, simply because mere lack of physical ability does not allow them to operate differently. They only do what is natural. A Soviet meat seller was not a bad person either; I would have been perfectly happy to sell meat to everyone, but I just didn’t have meat for everyone. So he prioritized. Best pieces immediately went to friends and family; then other needs were served to fellow providers, in a quid-pro-quo arrangement; the local authorities took their part immediately after; and the rest of the population had to wait in line for hours and hopefully, though not necessarily, get something. The Supreme Court justices who are dispensing a product that is so in short supply naturally operate in exactly the same way. (Although what is not natural is the fact that the Supreme Court recently managed to grant one of the prized hearings of less than two hundred a year to Guantanamo detainees, while denying more than nine thousand eight hundred compatriots this privilege to be heard.)

Well, can you do something about it?

May. 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 vastly improved, as I suggested in my previous article titled ” Judges, justice and a gulf “. Come in; “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 therefore justice, so that normal people have an equal opportunity to be heard by the Supreme Court.As do the nababs who can hire the judges’ favorite lawyers; even the mere number of Supreme Courts should be increased, preferably 60 times, in direct proportion to the increase in the population, to allow them to adequately meet the needs of the nation rather than truncate those needs, in imitation of the Procrustus of Greece, mythology, to the physical capacity of the Court.

“This is not the freedom that we can hope for, that no grievance will ever arise in the Commonwealth, that no man in this world expects; but when grievances are freely heard, deeply considered, and quickly reformed, then it is the upper limit of the achieved freedom sought by the wise, “wrote John Milton three and a half centuries ago in his immortal Areopagitica; And since the true raison d’être of the courts is to give people the ability to have their complaints “heard freely, considered in depth and quickly reformed,” the courts should be doing just that. But how can this task be accomplished today, when its main instrument, the Supreme Court of the United States, has neither the capacity nor the interest to do so?

The two-hundred-year-old Supreme Court that still operates today cannot be expected to provide adequate legal services to a nation that has since multiplied sixty-fold, any more than a two-hundred-year-old locomotive pulled out of a museum can be expected. 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 only have a sixtieth of the amount of justice of early American citizens, all because the Supreme Court was left without the ability to hear cases a long, long time ago. How to solve the problem of the Supreme Court’s capacity, by having it provide real justice to real people instead of occasionally proposing some abstruse “legal principle” as it does today, may not be immediately obvious, but from the good of all of us. it needs to be actively searched and found.

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