Studying the U.S. Supreme Court's Working
by T.R. Andhyarujina*
In March this year I was privileged to study the proceedings of the United States Supreme Court on two days. Thanks to Robb Jones, the energetic Administrative Assistant to Chief Justice William H. Rehnquist, I was given a seat in the special pews reserved by each of the justices of the Supreme Court for their guests, in this case by Mr Justice Antonin Scalia and Ms Justice Ruth Bader Ginsberg who I had met at the Indo-US Legal Forum in January of this year.
The proceedings of the U.S. Supreme Court in session must strike an Indian lawyer as strange compared to the system of advocacy which we in India have substantially borrowed from English appellate Courts. Two features at once strike one as distinctive. First, the brevity of the oral arguments in each case, and second, the majesty, dignity and decorum of the Court and its proceedings.
The U.S. Supreme Court sits en banc with all its nine justices in a magnificent hall with high ceilings friezes and columns and red velvet hangings. The proceedings are conducted with great solemnity. An easy silence and decorum pervades the Court Hall. Justice O.W. Holmes once said of this atmosphere, "We are silent here but it is the silence of the eye of a storm", meaning that behind scenes, stormy debates take place between judges in deciding the cases. Admission is open to the public but limited to the seating capacity of the Court. Promptly at 10 a.m. the nine Justices led by the Chief Justice enter the Court through the tall draperies behind the Bench and take their places according to their seniority. No attendant awaits or seats them on the Bench. The Justices alone wear lawyers gowns. The lawyers in the Court have no formal attire unlike Indian and English lawyers. The Marshall of the Court seated on the right of the Bench strikes the gavel drawing the attention of all who have assembled in the traditional words, "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, oyez, oyez. All persons having business before the Honorable the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court."
Before commencing the hearing of oral arguments of the cases listed for the day, there may be a formal admission of a lawyer to the United States Supreme Court Bar by the Chief Justice as it was on the two days I attended. A member of the Supreme Court Bar introduces the incumbent member to the Court and prays for his admission stating that in his opinion the lawyer is qualified and otherwise fit to be a member of the Supreme Court Bar. The Chief Justice then grants the prayer and declares him formally admitted. Presumably some control is thereby maintained on the standards of the lawyers who are admitted to the Supreme Court Bar. More importantly, the working of the U.S. Supreme Court precludes the appearances of all and sundry lawyers. There are no "prominent practitioners" in the Court as there are in the Indian Supreme Court. Not many of the country's eminent lawyers may boast of having appeared in the Supreme Court on more than a few occasions.
On an average the Court hears 150 cases each year. The Court's business of the day is listed in the Court's calendar printed several weeks in advance. It generally consists of 4 arguments a day - marked one hour each - on three days a week with two weeks intervals. Two arguments are held, two in the morning beginning 10 a.m. and two in the afternoon on Monday, Tuesday and Wednesday. In the recesses between argument sessions the justices are busy writing opinions, deciding on admissions of petitions in conference amongst themselves and studying written briefs for the next argument.
Each justice has the option of employing upto four law clerks as assistants. Most of the law clerks are the top law school graduates in the United States who consider it a matter of honour to be so selected. Some of the law clerks have later made names for themselves as distinguished judges of the U.S. Supreme Court or of the Federal Courts. For example, the present Chief Justice, Mr Justice Rehnquist was a law clerk to the former Mr Justice Jackson of the Supreme Court. The law clerks screen the petitions which are presented for admission of cases. They present a memo summarising the petition and the issues involved for the justice with whom they are clerking. At times a draft judgment is prepared by a law clerk after discussions with the justice. The draft may be rejected or accepted or modified or given up. The final view and decision however is that of the justice. A popular myth which I heard even from an English judge is that the judgments of a Supreme Court judge are those of his law clerks. This is simply not true, though anybody who is familiar with the increasing literature on the lives and the diaries of the U.S. Supreme Court judges knows that a large amount of judges' work is helped and perhaps his thinking influenced by the work done by his law clerks. The law clerks often listen to oral arguments and they are seated in the chairs flanking the Courtroom on the right.
Promptly on the case being called out for oral argument, the Counsel for the Appellant stands up behind the single lectern immediately in front of the Chief Justice and begins his arguments. (In this respect the practice is same as in the House of Lords). On the lectern there are two lights. When the white light goes on, counsel has five minutes of the half hour allotted to him to argue. The red light indicates that the counsel has used up all his or her allotted time and he has to stop. The time limits are rigid and unrelenting and therefore the lights are operated by the Marshall who keeps record of the time taken by the Counsel. In two of the cases witnessed by me, the Appellant's counsel sought a right of rejoinder with the permission of the Chief Justice for the remainder of the allotted time after the white light came on. The permission was granted by the Chief Justice specifying the few minutes in which he could exercise this privilege after the Respondent's arguments terminated.
It seems a misnomer to say that the counsel argues his case even for half an hour. Hardly has the Counsel for the Appellant introduced his case (which perhaps he does as a formality) when one of the justices queries him on his or her doubts. He barely finishes answering the justice when another justice puts his question to him. In rapid succession the justices put their questions, testing the counsel's case by a logical follow up or reductio ad absurdum. The questions are short, to the point and never discursive. The same process is repeated to the counsel for the Respondent. No impression is given that the justices are inclined to decide one way or the other. Somehow the justices avoid simultaneous questioning without any co-ordination amongst themselves. Some judges are known to be generally silent on the bench eg. Justice Blackmun and Justice Clarence Thomas in this bench did not take part in any questioning in these cases. All in all it can be a very gruelling test of the counsel's mastery of his case and his ability to satisfy the court convincingly.
No attempt is made to refer to any notes by Counsel. Indeed there seems to be no time for that if the questions are to be answered. The study of the written briefs which the justices have made with their assistants seem to render any citation of statute or case law superfluous. It is assumed that the Counsel and Judges are fully familiar with the statutory provisions and the relevant case law, and counsel and judges mention them without citations from the books. I did not find any justice making notes during the arguments.
All this is of course possible because of the intensive study which the justices have made from the exhaustive written briefs presented to the Court by all sides from the time they have decided to admit the case. It has been said that the oral arguments are only for resolving the doubts of the justices. Yet, they seem to be vital in some cases. Some Justices have admitted that they have changed their views after hearing oral argument. On the other hand, some observers say that the art of a skilful counsel lies in getting over his allotted time without damaging his case. One Court observer believes that probably more cases are lost than won by arguments.
One of the cases which I witnessed was interesting and even exciting. It was John H. Dalton Secretary of Navy v. Arlen Specter. The case was described by the Washington Post as a "quintessential inside the belt-way drama : a U.S. Senator arguing against the administration's top lawyer, the Solicitor-General, whilst a who's who of past and present Government Officials looked on." The case involved an important question of whether the Court can judicially review the decision of an independent commission set up under an Act of Congress to determine the closure of Naval bases when the findings of the Commission was upheld by the Congress and the President of the U.S.A. Senator Specter who usually sits in judgment over the selection of Court nominees of the President as a member of the Senate Judiciary Committee this time had to do the answering in this case to the justices. In a Court packed to capacity the Solicitor-General Mr Drey S. Days III (referred to as "General" by the justices, in the same manner as our judges refer to the Solicitor-General as Mr Solicitor) argued that there could be no judicial review after the Commission, Congress and the President had determined the closure of the Naval Shipyard. Senator Specter on the other hand forcefully argued for judicial review on the ground that there were procedural faults and the defence officials had concealed compelling evidence. The high point of the drama was when Chief Justice Rehnquist in his rich and resonant voice told Senator Specter that his reliance on a prior court ruling was "rather strained". Senator Specter retorted, "Chief Justice Rehnquist, I respectfully disagree with you categorically". This seems to be typical of the lack of the obsequiousness often seen in our Courts, and the free and forthright debate between Court and the Counsel. Incidentally, the Justices are simply referred to as Mr Justice so and so and the appellation of My Lord is not at all used by Counsel. The judgment of the Court in this case when it is delivered (before the term of the Court is over in July) will no doubt be an important one in the field of judicial review.1
How much of the working of the U.S. Supreme Court can be relevant to the India's Supreme Court? Can we limit the actual hearing of the cases in our Supreme Court to about 150 as the U.S. Supreme Court selectively does? The U.S. Supreme Court has the full liberty to decide which case to hear. Out of over 6000 petitions which are filed (by way of certiorari) from the federal and State Courts roughly half of them are found to be deserving of no serious consideration. A few days before the weekly conference of justices, the Chief Justice sends his "discuss list" of petitions to the chamber of the other justices. These are the appeals he wants discussed. Other justices can add cases to the list. The appealed cases that do not make the final discuss list - the fate of about three out of four - are consigned to the dead list. They will be rejected by the Court without getting any mention in the conference room. For the rest the decision to admit the case for hearing is taken in the weekly conferences of the nine justices in total secrecy from which even their staff-members are excluded. If four out of the nine justices vote in favour of the case, the case is put down for hearing. The decision to reject need not imply that the case has no merits or that the Court believes that the judgment under appeal is correct or that the same question will not be considered later. It is simply that the Court thinks fit not to hear the case.
This self-limitation, the U.S. Supreme Court has imposed in the interest of preserving its own efficiency and standing. Very early, it was realised that no single Court of last resort whatever the number of its judges could dispose of all the cases which arise in a vast country like the United States and to which litigants will always want to bring up as the highest Court if the right of appeal was made unrestricted. Therefore the Court decided in its own interest to entertain petitions restricted to cases which can be said to be of national importance or which lay down a principle of fundamental importance. Private concerns however great and pressing of litigants by themselves are ignored.
Chief Justice Taft stated the test for selection thus:
"No litigant is entitled to more than two chances, namely, to the original trial and to a review, and the intermediate courts of review are provided for that purpose. When a case goes beyond that, it is not primarily to preserve the rights of the litigants. The Supreme Court's function is for the purpose of expounding and stabilizing principles of law for the benefit of the people of the country, passing upon constitutional questions and other important questions of law for the public benefit."
Chief Justice Charles Evans Hughes put the same thought more succinctly:
"Review by the Supreme Court," he said, "is in the interest of the law, its appropriate exposition and enforcement, not in the mere interest of the litigants."
In 1949, Chief Justice Fred M. Vinson, addressing the American Bar Association, told the lawyers:
"To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved. Those of you whose petitions for certiorari are granted by the Supreme Court will know, therefore, that you ... represent not only your clients, but tremendously important principles, upon which are based the plans, hopes and aspirations of a great many people throughout the country."
The limitation on the number of cases the Supreme Court takes up enables the justices to devote the necessary time, study and research on the important questions which they decide and contributes to the quality of their judgments.
The Indian Supreme Court has a totally different approach in this respect. The Supreme Court of India began with a sanctioned strength of 8 judges. Since 1986, the sanctioned strength is 25 judges. The Supreme Court of India functions not as a Court sitting en banc but in separate benches thus not presenting the institutional unity which the U.S. Supreme Court does. Had the Supreme Court of India functioned en banc, it would have collapsed by the enormous burden of work thrown on to it. For the last two decades, resort to the Supreme Court by way of special leave by litigants has become almost promiscuous - often as a last chance even after the prescribed appeals are exhausted by the litigants. The Rules of the Supreme Court require an obligatory oral hearing in Court for all special leave petitions. The volume of special leave petitions and the time for their disposal have exacted a disproportionate amount of the Court's time. They have also quantitatively and qualitatively affected the Court's output in the regular hearing of admitted cases. In the year 1993, 22043 Special Leave (Civil) Applications and 2991 Special Leave (Criminal) Applications were filed in the Supreme Court. All of them had to be heard by the Court sitting in several benches. Out of these Special Leave (Civil) Applications in 808 special leave was given by the Court and 1407 were disposed of by hearing them at the time of hearing of the special leave petitions. The rest were rejected. Out of the Special Leave (Criminal) Applications, 202 were granted leave and 166 disposed of by hearing them at the time of admission. The rest were rejected. More than two-fifths of the Supreme Court weekly time is taken each week in Court for the disposal of these "miscellaneous" matters, apart from the time taken by the judges in reading the papers at home. More importantly, the load of the special leave applications takes away the much needed time of the judges from the more fruitful study, research and reflection required for the admitted cases.
Though giving of special leave by the Supreme Court of India is discretionary, the Court has not explicitly laid down the basis of its jurisdiction. Unlike the U.S. Supreme Court, the Indian Supreme Court does not restrict admissions to cases which are of national or fundamental importance requiring the decision of the highest Court. The prevailing political, social and legal conditions in India impose far greater demands on the Indian Supreme Court which the Supreme Court of United States is not subject to. The Supreme Court of India is necessarily more expansive and activist because of these conditions in which it functions. Much of the time of the Supreme Court is taken in entertaining humanitarian and social causes, human rights cases and exercising what is called "poverty jurisdiction". The fact that a litigant has an individual grievance only has not been a reason for rejecting it. Giving finality to a litigation has also not been the consideration of the Supreme Court for declining to exercise its jurisdiction. The vast extent of jurisdiction of the Indian Supreme Court voluntarily assumed by it is a matter of surprise to judges of other highest courts. When told about it, the distinguished judges and lawyers of the U.S. at the last Indo-US legal seminar held in New Delhi in January of this year could not believe that the highest Court of the country could be so burdened.
With this expansive and almost invitational jurisdiction now developed by the Supreme Court of India it appears now impossible for the Court at this stage to restrict itself in the manner the U.S. Supreme Court has done without losing its relevancy to the litigants or being considered elitist. However, an expansive and open-door jurisdiction exacts its toll on the efficiency, quality and expeditious disposal of cases of a Court, as it has done in the case of the Supreme Court of India. If the Supreme Court of India has to restrict its decision-making in the same manner as the U.S. Supreme Court has done, there would have to be a fundamental reappraisal of the role of the Supreme Court in our society. Simultaneously, there would have to be far reaching structural changes at the High Court level to ensure a higher level of qualitative administration of justice in the High Courts, with at least one right of review or appeal by the High Courts themselves. At the national level a National Court of Appeals may have to be set up, co-equal to the Supreme Court, leaving the latter to restrictively function as a Constitutional Court.
Whilst these changes are a consummation to be devoutly wished for, there are certain other features of the working of the U.S. Supreme Court which we can profitably adopt presently. The system of submitting detail and comprehensive written briefs should be introduced in all regular hearing of cases in the Supreme Court. Written briefs have several advantages. They enable lawyers to antecedently prepare the case thoroughly instead of the last minute preparation of cases by lawyers, only when they are listed for hearing. Secondly, they enable the judges to be completely prepared at the oral hearing, as the written briefs will contain all statutory provisions and the relevant case law as well the facts of the case and legal submissions. Thirdly, they will dispense with the necessity of the judges making detailed notes of counsel's arguments in Court for their judgments. Finally, the oral arguments will be considerably abridged as judges will have known the parties cases and they could confine counsel to answering their doubts and clarifications in Court. With written briefs being made obligatory the Court can limit the oral hearing of each case to a limited time specified in the cause list of the day itself.
The Supreme Court Rules originally required parties to prepare a Statement of Case by each party. It was a mistake to do away with this. A Statement of the Case whilst not as exhaustive as the U.S. Supreme Court brief, was extremely useful in a methodical and expeditious presentation of the case when a Statement of Case was well prepared and was read before hand by the judges. This writer remembers that in the President's Reference in the Parliamentary Privileges case2 he and his Senior, the then Advocate-General of Maharashtra Mr H.M. Seervai appearing for the U.P. Vidhan Sabha prepared the Statement of Case on Parliamentary Privileges for over two months in chambers. Every relevant authority-Indian, English, Australian and U.S. was found out, old and new, and was digested in the Statement of Case. It enabled our side to open the case with great ease and complete familiarity of the subject when the Reference was heard a few months later. Portions of the Statement of the Case were frequently referred to by Court and Counsel in the Reference.
The English Court of Appeals also now by a Practice Note requires each side to submit "Skeleton Arguments" several days in advance to the hearings in Court and to the opposite side before the case is heard. I have seen these "Skeleton Arguments" in U.K. They are not as bulky as the U.S. Lawyers' written brief. But I have it on high authority of the present Master of Rolls, Sir Thomas Bingham that they considerably help to reduce the oral arguments in Court whilst not sacrificing the traditional value attached to oral arguments by the English Courts. A written brief should therefore be made mandatory by the Supreme Court Rules when a case is to be regularly heard by the Supreme Court. Its utility and quality should be insisted upon by the judges and its absence should be visited by the penalty of not hearing the party who fails to present the written brief to the satisfaction of the Court.
The other feature which we can usefully borrow from the U.S. Supreme Court is the system of having law clerks to assist judges of the Supreme Court in their research and study. Some part of the judges' judicial chores such as looking up case law, correcting drafts etc. could also be done by such clerks. Judges should invite applications from the most meritorious law students passing out from our leading law schools to join as law clerks to them. The young lawyer-student would consider it a matter of honour and mark of distinction to do the spade work for a Supreme Court judge. They could also be paid a stipend for their living expenses. It is a feature worth experimenting at least.
- Since this article was written the U.S. Supreme Court on May 23, 1994 held (per Chief Justice Rehnquist) that judicial review was not available to challenge the decision of the Defence Base Closure Commission.
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- Keshav Singh, Re (Reference under Art. 143 of the Constitution of India), AIR 1965 SC 745
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