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

Justice System Journal, 2003 by Buchman, Jeremy

Compare two possible responses to workload crises: heavier reliance on summary opinions and greater discretion to refuse to hear cases. Both options would have been less time-consuming than hearing oral arguments and issuing full-dress opinions (holding caseload constant), and neither summary opinions nor denials of certiorari offer much guidance to lower courts that must take their lead from the Supreme Court. What distinguishes the two responses is the amount of agenda-setting authority assumed by the Supreme Court. The power to grant or deny writs of certiorari enables the Court to determine which policy battles it will enter and on what terms (i.e., which legal issues it will choose to address). Disposing of more cases through summary opinions, in contrast, forces the Court to rule, however cursorily, on all matters properly brought before it. For a reformer who envisions a more powerful Supreme Court, expanding certiorari jurisdiction offers a surer route to that end.

While Taft sought to strengthen the Court's policymaking capacity, he wanted to avoid provoking congressional resistance based on concerns that an empowered Supreme Court would misuse its newfound authority. Several aspects of Taft's lobbying strategy reflected both of these desires. The first was engaging the Court intimately in the drafting of the proposed Judiciary Act, while publicly downplaying the Court's role. Shortly after the Court's 1921 term began, Taft appointed Justices Day, Van Devanter, and McReynolds to draft a bill that would give the Court more discretion over its docket; Day retired soon after being appointed to the committee. The remaining members, with Van Devanter playing the predominant role in shaping the bill, were then asked by Taft to present the Court's position to the Senate Judiciary Committee during its February 1924 hearings on the proposal (see Murphy, 1964:138-39). All of the justices testifying before the committee were careful to minimize the proactive role that Taft had played in promoting the legislation. When testifying in 1922, Taft described the bill as the product of a committee predating his joining the Court (1922 House Hearings:1).7 And in his 1924 testimony before the Senate Judiciary Committee, Van Devanter described the proposal as the product of a Supreme Court committee "appointed to consider the subject, in response to requests from some members of the Judiciary Committees of the Senate and the House" (1924 Senate Hearings:27). But these accounts were inaccurate. In November 1921, Taft, responding to Senator Albert Cummins's (Iowa) proposed alteration of Supreme Court certiorari jurisdiction over state court decisions, informed the senator that "[w]e are preparing a bill which we hope to bring before your committee," and that "[his fellow justices] wish me to go before the committee and present [it] at the request of the Supreme Court" (Hartnett, 2000:1662-63(8)).

Taft's strategizing with regard to the presentation of the bill offers important insights into his broader lobbying approach. First, we should note that Taft himself did not testify before the Senate Judiciary Committee in support of the bill. (He did testify before the House Judiciary Committee in March 1922 during an initial attempt to win support, but the proposal died in committee.) By sending other justices to represent the Court before the Senate, Taft could downplay his own role in developing and promoting this and other judicial reform measures. He believed that his long-standing rivalry with prominent Progressives in the Senate, several of whom served on the Judiciary Committee, might enhance the possibility that personal animosities would drive opposition to the bill (Mason, 1965:110, 125). Having Van Devanter, Sutherland, and McReynolds testify before the Senate addressed this concern by allowing Taft to remain backstage, but it also enabled Taft to take advantage of what each justice could contribute to the campaign. Van Devanter brought an intimate familiarity with the jurisdictional issues under discussion; Sutherland, in addition to being a former president of the American Bar Association, had represented Utah in the Senate and could draw upon both his legislative experiences and his relations with sitting senators; and McReynolds was a Democrat with ties to several senators (Murphy, 1964:142). These justices, who later were part of the anti-New Deal bloc known as the "Four Horsemen," were no more compatible ideologically with Progressive senators than was Taft, but in Taft's eyes, their appearance before the Senate would not raise Progressives' hackles as Taft's appearance would have done.