Judicial lobbying and the politics of judicial structure: An examination of the Judiciary Act of 1925*

Justice System Journal, 2003 by Buchman, Jeremy

This article examines the circumstances surrounding the passage of the Judiciary Act of 1925. It considers how the Court was able to lobby successfully for a measure that significantly expanded the Court's certiorari jurisdiction and, consequently, its policymaking authority. What factors best explain the success of this effort? And why did legislators accede so readily to a proposal that would strengthen the Court's hand? Accounts of the bill's enactment speak primarily of a lobbying campaign stressing considerations related to efficiency, but the success of this campaign cannot be explained without reference to an alignment of legislators' and justices' policy preferences.

When William Howard Taft began his tenure as Chief Justice of the United States Supreme Court in 1921, he was not alone in perceiving a workload crisis. The volume of litigation confronting the Supreme Court had been increasing for decades, and this expansion was the product of several factors (Mason, 1965:89-90). The growing national economy was accompanied by an increase in regulation, at both the national and state levels, and the industries subject to regulation were not shy about challenging these new laws. Expanding caseloads also resulted from prosecutions of actors engaging in activities recently criminalized by Congress: narcotics trafficking, white slavery, income tax violations, auto theft, and perhaps most dramatically, Prohibition-related crime. In addition, federal courts faced a wave of civil litigation stemming from war-related contract and bankruptcy disputes. These factors combined to produce increasingly clogged dockets that spurred reformers to seek solutions.

Any account of the Supreme Court's emergence as a prominent policymaker would be fatally incomplete without consideration of the solution favored by Taft and eventually adopted by Congress: the Judiciary Act of 1925. This legislation, also known as the Judges' Bill, expanded the Supreme Court's certiorari jurisdiction, thereby empowering the Court to exercise greater control over its docket (O'Brien, 1996:181). For the Court, as for other governing bodies, agenda-setting represents a crucial component of policymaking capacity (Perry, 1991; Provine, 1980), and the exercise of this power has enabled the Court to transform its decision-making agenda, and in particular to focus greater attention on federal and state laws abridging civil rights and civil liberties in the post-New Deal era (Pacelle, 1991). Moreover, the Judiciary Act has furthered the Court's redefinition of its primary function from that of a court of last resort, concerned primarily with correcting errors and vindicating the rights of particular litigants, to those of supervisor of the federal judiciary and enunciator of legal rules and principles in cases with broad legal or social significance (Baum, 2001:120; Fish, 1992; Perry, 1991). Today, the Court possesses virtually complete power to determine which cases it will hear, as Congress, in 1988, eliminated almost all remaining categories of mandatory appeals.

The shift from an entirely mandatory docket to an overwhelmingly discretionary one was made possible by congressional action-more accurately, by a series of congressional enactments. Before the passage of the Evarts Act of 1891, which created the modern-day federal courts of appeals, the Supreme Court was obligated to decide all cases brought before it. The Evarts Act granted the Supreme Court mandatory appellate jurisdiction over some categories of cases emanating from the circuit courts of appeals and allowed the Court to review all other circuit court rulings under two circumstances: 1) certification by a court of appeals, or 2) grant of a writ of certiorari by the Court. The Court's certiorari jurisdiction was subsequently expanded in 1914 and 1916 to give the Court discretion to review judgments of state supreme courts. The Judiciary Act of 1925, though, represented a quantum leap with regard to the Court's agenda-setting capabilities.

One might expect that legislation of such magnitude would have been the subject of long and heated debate, especially since the primary beneficiary, the Supreme Court, had generated controversy and made enemies in Congress when it invalidated numerous federal and state labor laws. Such enemies, by this account, would have been reluctant to bolster the policymaking capacity of a rival institution. Yet the Judges' Bill passed with little resistance, even from legislators who had been vocal in their disapproval of the Court's conservative direction.

Why was Congress so willing to give the justices what they sought? Did legislators base their decision on technocratic considerations of how the Court's workload could be ameliorated most effectively? Did they acquiesce because they agreed with the Court's ideological direction and sought to advance shared policy preferences? Were they responding to interest-group pressure? Or were they simply unaware of the potential consequences of the Judiciary Act? Case studies of the history of the act's passage (see Hartnett, 2000; Mason, 1965; Murphy, 1964) emphasize how Taft's lobbying strategy succeeded in convincing legislators that they should defer to the justices' wishes because of the bill's technical complexity. The justices' lobbying did play a significant role in the act's passage-without Taft's involvement, there would have been no proposal for which to lobby-but the standard account is incomplete, in that it looks at only one side of the lobbyist-legislator relationship. That is, we learn what motivated the justices' strategic choices, but not why legislators behaved in ways that appear anomalous when considered in light of how legislators typically respond to lobbying efforts.