Evening star. [volume] (Washington, D.C.) 1854-1972, 1929-06-16

substantial Federal questions, or be-
cause the Judgment of the lower court
was not final. or because the Judgment
of the lower court was not based on a
non-Federal ground sufficient to sup
port IT.. a.
From this 1t may be seen that much
of the courts time is consumed in sift-
ing out the cases which it will consider
on the merits. OF the 825 cases dis
on the merits, and only 1875 opinions
were delivered.
Now that the Supreme Court has
caught UP with its docket sits next
problem undoubtedly will be to di-
minish the number of cases which
should not come before it, Thus far
there has been no diminution in the
number of cases. During the year
1924-6 the number of cases docketed
jumped to 854 from 731 during the
preceding term. The probable reason
for this is that though the jurisdic-
tional act had been enacted 1t had not
yet become effective, and attorneys de-
sired to gain an advantage by getting
their cases in under the old law. Since
then the cases docketed during any
one term have been In the vicinity of
100 to $50. This is by far a larger
number of cases than any one court
can handle adequately.
What methods the court will adopt
to accomplish this end is not known.
Much of the difaculty is undoubtedly
due to lack of knowledge on part of
the members of the bar concerning the
cases which are now coming to the
Supreme Court. Each attorney, of
course, sees great Importance In his
own particular case. but he does not
view his case in the light of hundreds
OF other cases pending before the
Supreme Court at the same time.
Appellants PenaIized.
This term the court penalized two
appellants in the sums of $50 and
5000, respectively, for bringing cases
in which the court held the questions
were so frivolous and so lacking in sub
stance that the proceedings merely
wasted the time of the court and OF
the opposing side. One of them ques-
toned the constitutionality of the
Kansas statute extending the States
power Of eminent domain to lands
possessing historical interest. The other
case involved O contest under q will
and question of the Jurisdiction of
the lower Federal court in q suit
against State.
Perhaps it was harsh to penalize the
appellants for the mistakes of their
counsel. Usually clients do not exer-
else much control over the details in
the proceedings taken by their attor-
neys, and If they did this would prob
ably only hinder rather than help the
situation. Furthermore. these penalties
came somewhat too late, for by that
time the court had already instituted
the rule that in every case coming on
appeal q preliminary jurisdictional
statement must be filed, and these
statements enable the court to dispose
of the cases without the necessity OF
hearing the oral arguments.
This method of diScouraging the bar
from bringing unmeritorious cases can
hardly be applied to the great bulk of
cases brought to the Supreme Court
on preliminary applications to review
the decisions of the lower courts. It
would be incongruous to penalize an
aggrieved petitioner for asking the
Supreme Court, in its discretion, to
correct those rulings In the main
the solution lies in a better acQuaint-
anceShip, on the part of the bar, with
the work of the Supreme Court
Procedure Partly Responsible.
In part, the dificulty lies with the
procedure In the court itself. The bar
has been encouraged by the court not
to attribute much importance to denials
OF petitions for certiorari. The court
assigns no reasons in disposing of such
cases. When a petition Is denied, it
may be assumed that the court sees no
error In the decision of the lower court
On the other hand, II the case comes
from q State court the reason may be
that the case presents no substantial
Federal question, or that the decision
may be based on a on-Federal ground,
or that the Judgment was not final. If
the case comes from the Circuit Court
OF Appeals, the reason for the denial
Of the petition may be that there is no
conflict among the decisions of the
various circuits, or that the decision
on local question was not In conflict
with local authority, or that the case
does not present question of general
law not yet passed on by the Supreme
Court. From whatever court the case
may come, the reason for the denial
OF the writ of certiorari may be that
substantial justice has been done by
the lower courts, or that the case pre-
sents no problem Of sufficient public
Importance.
Coupled with the above is the feeling
on part of counsel, perhaps unfounded,
that public importance" Is a relative
In their decisions by the relative merits
Of the petitions before them at the par
ticular time. All these considerations
create hope that perhaps the court
might grant a review in the particular
case.
Reasons for Denial Of Petitions.
Were the members of the bar apprised
of the reason for the courts action, the
NF he
edly diminish. In some States, where
cases may be brought to the Supreme
Court OF the State from the appellate
court on a petition for a writ of certi-
orari, the denial of the petition without
assigning reasons Is tantamount to an
amrmance Of the Judgment Of the lower
court. II some such rule were adopted
by the Supreme Court, it would serve
as reason for denial Of petitions In q
great number of cases.
Many petitions could be rejected with
the reasons stated in few words. Most
or the petitions would probably be re-
jected for lack of substantial Federal
question" This phrase, however, may
have to be supplemented by an opinion
from time to time. Last year when the
Supreme Court decided the case in
which 1856 insurance companies sought
to enJoin the rate-making order OF the
superintendent OF insurance OF Missouri,
the court, In an elaborate opinion, dis
missed the case for lack of subStan-
tial Federal question. The opinion was
a real contribution to the body Of con-
stitutional law. This term among the
cases dismissed for the above reason
was one involving the question whether
a States power of eminent domain is
limited by the equal protection clause
Of the Federal Constitution, or whether
1t Is limited only by the requirements
that the property be taken for public
use and that just compensation be paid
to the owner Of the property. This
term, also, in the case involving the
constitutionality of the Ohio railroad
consolidation law and its conflict with
the consolidation provisions of the