Evening star., 1937-03-23
Roosevelt VS.. Hughes.


Presidents message to Congress of Feb
ruary and some from the letter from
Chief Justice Hughes read by Senator
Wheeler yesterday, an interesting and
enlightening dialogue may be arranged
as follows:
The President: Even at the present
time the Supreme Court is laboring
under heavy burden.
The Chief Justice: The Supreme
Court is fully abreast of it's work. This
gratifying condition has obtained for
several years. We have been able for
several terms to adjourn after disposing
of all cases which are ready to be
heard.
The President: It's (the Supreme
Courts difficulties in this respect were
superfcially lightened some years ago
by authorizing the court, in It's discre-
ton, to refuse to hear appeals in many
classes of cases.
The Chief Justice: The act of 1925,
limiting appeals as matter of right
and enlarging the provisions for review
only through certiorar, was most care
fully considered by Congress. That
legislation was deemed to be essential
to enable the Supreme Court to perform
It's proper function. No single court of
last resort, whatever the number of
judges could dispose of all the cases
which arise in this vast country. Hosts
of litigants will take appeals so long as
there is a tribunal accessible In pro-
tracted litigation, the advantage is with
those who command long purse. Un-
meritorious appeals cause intolerable
delays. Such appeals clog the calendar
and get in the way of those that have
merit.
The President: This discretion was so
fully exercised that in the last fiscal
year, although BOT petitions for review
were presented to the Supreme Court,
1t declined to hear TIT cases.
The Chief Justice: Granting certiorari
is not a matter of favor, but of sound
judicial discretion. 1t is not the i'm
portance of the parties or the amount
of money involved that is in any sense
controlling. The action of the court is
governed by it's rules. These rules
are impartialy applied as it is most
important that they should be. Further
more, petitions for certiorari are granted
If four justices think they should be.
tun Of hn
strongly of the opinion that certiorari
should be allowed, frequently the other
justices will acquiesce in that view, but
the petition is always granted if four so
vote.
The President: If petitions in behalf
OF the Government are excluded, it ap-
pears that the court permitted private
Itigants to prosecute in only 108 cases
out OF 803 applications. Many of the
refusals were doubtless warranted. But
can it be said that full justice is
achieved when court is forced by the
sheer necessity of keeping up with its
business to decline, without even an
explanation, to hear eighty-seven per
cent of the cases presented to it by
litigants?
The Chief Justice: The work of pass
ing upon these applications for certiorari
is laborious, but the court is able to
perform it adequately. Observations
have been made as to the vast number
of pages of records and briefs that are
submitted in the course of term. The
total is imposing, but the suggested con-
clusion is hasty and rests on an illusory
basis. think that it is safe to
say that about sixty per cent of the ap-
plications for certiorari are wholly with
out merit and ought never to have been
made. There are probably about twenty
per cent or so in addition which have
fair degree of plausibility, but which
fail to survive critical examination
The remainder, falling short, believe,
Of twenty per cent, show substantial
grounds and are granted. 1 think that
1t Is the view of members of the court
that if any error is made in dealing with
these applications, it is on the side of
liberality. An increase in the number
of justices of the Supreme Court, apart
from any question of policy, would not
promote the efficiency of the court.
Chief Justice Hughes letter skillfully
reveals the subterfuge which lay in pre-
senting the court packing plan as a move
designed to improve the efficiency of the
Supreme Court. Packing the Supreme
Court would not increase, but might i'm
pair, that efficiency. Without commit
ting the possible improperly of passing
on the legislative policy involved in the
court packing plan, the Chief Justice has
at the same time delivered a powerful
blow against that plan by confining him.
self to dignif1ed recital of the facts.