Epitaph for Mandatory Jurisdiction
By Robert L.
Stern, Eugene Gressman, and Stephen M.
The Supreme Court’s mandatory
jurisdiction is all but gone. On June 27, President Reagan signed legislation
that freed the Court from virtually all appeals—cases the justices were at least
technically obliged to decide on the merits.
Nine years ago, in the September 1979
issue of the ABA Journal, Eugene Gressman, a co-author of this article,
predicted that: "The appellate jurisdiction of the Supreme Court … appears to be
at the brink of losing virtually all its … mandatory characteristics. Given the
delays and quirks of the legislative process, Congress in the relatively near
future seems likely to cloak the Court’s jurisdiction almost entirely in
The "quirks of the legislative process"
delayed the enactment of this legislation—the new law is in most respects
identical with bills introduced in 1978 and 1979—for nine years.
But the prediction by Gressman proved
true. From now on, except for a handful of rare cases, the only route to the
Court is by petition for certiorari.
During the first century of its
existence, the Supreme Court, like other appellate courts, decided on the merits
all cases appealed to it over which it had jurisdiction. In 1891, when the Court
became unable to keep up with its increasing caseload, Congress created the
circuit courts of appeals.
At the same time, Congress gave the
Court discretionary review authority over appellate decisions in diversity,
patent, revenue, criminal and admiralty cases. Parties wishing to appeal such
cases would file a petition for certiorari, which the Court could grant or deny
without passing on the merits.
When the Court again fell far behind in
its work, Congress included in the Judiciary Act of 1925 provisions that
transferred most cases subject to Supreme Court review to the Court’s
Excepted from the discretionary
Some appeals from state appellate courts;
Some criminal appeals by the United
Appeals in some antitrust cases and suits
to review orders of the Interstate Commerce Commission and several other
Appeals from three-judge court decisions
in suits to enjoin the enforcement of state laws on grounds of federal
unconstitutionality (former 28 U.S.C. § 2281).
In 1937, during a time of
constitutional challenges to many federal statutes, Congress also provided for
direct appeals to the Supreme Court from decisions of any federal court—trial or
appellate—holding a federal statute unconstitutional, and of three-judge
district courts in suits to enjoin federal laws as unconstitutional.
The direct-appeal provisions in the
Criminal Appeals Act of 1907 were the first of these statutes to be repealed,
after the Supreme Court had branded the Act as "a failure, … a most unruly child
that has not improved with age." United States v. Sisson, 399 U.S.
At about the same time many of the
other obligatory-appeals statutes fell under severe criticism. In 1972, the
Study Group on the Caseload of the Supreme Court, appointed by Chief Justice
Burger and chaired by Professor Paul A. Freund (Stern was a member of the Study
Group and Gressman one of its critics), concluded that direct appeals unduly
burdened the Court, and that all cases should be brought to the Supreme Court by
certiorari rather than appeal.
In 1974 Congress narrowed, almost to
the point of extinction, direct appeals to the Supreme Court in antitrust cases
(15 U.S.C. § 29). In 1975 it eliminated the three-judge district courts and
direct appeals in Interstate Commerce Commission cases (28 U.S.C. §§ 2342-2350),
and in 1976 in the large class of suits challenging the constitutionality of
state or federal statutes (28 U.S.C. §§ 2281-2282).
The same 1976 law, however, provided
that cases involving the apportionment of congressional districts and state
legislatures would still be heard by three-judge courts, with direct appeals to
the Supreme Court.
The mandatory appeals remaining after
1976 fell into two principal categories:
1. Appeals from federal court decisions
holding federal statutes unconstitutional (28 U.S.C. § 1252), and decisions of
U.S. courts of appeals holding state statutes unconstitutional (28 U.S.C. §
2. Appeals from state court decisions
holding federal laws invalid (a very small number), or sustaining state laws
against a charge of federal unconstitutionality (a substantial number). 28
U.S.C. §§ 1257(1), (2).
In addition, mandatory appeals were
allowed under a number of other statutes:
Two rarely used provisions in the Civil
Rights Act of 1964 (42 U.S.C. §§ 2000a-5 and 2000e-6) authorized the convening
of three-judge courts on the application of the attorney general in suits for
preventive relief against persons discriminating in places of public
accommodations and employment.
The Voting Rights Act of 1965 (42 U.S.C.
§ 1971) also authorized three-judge courts in suits to prevent impairment of
voting rights because of race or color. If the attorney general requests a
finding of a pattern or practice to engage in such discrimination he may, at the
time he files the complaint, request that a three-judge court be convened to
hear the case.
This statute differs from the Civil
Rights Act in that the defendant may also request a three-judge court. Appeals
to the Supreme Court can be taken only from final judgments of the three-judge
The Voting Rights Act also requires the
convening of three-judge district courts in the District of Columbia in suits by
state or political subdivisions for a declaratory judgment that (a) the
plaintiff has not used a test or device to deny the right to vote on account of
race or color, or (b) any new or different qualification to voting does not deny
or abridge the right to vote on the same ground. 42 U.S.C. § 1970(b) and
Direct appeals to the Supreme Court may
be made in such cases.
Amendments to the Voting Rights Act in
1975 also require three-judge courts, with direct appeals to the Supreme Court,
in suits by the attorney general to prevent the enforcement of a poll tax, in
violation of the 24th Amendment (42 U.S.C. § 1973[h]), and to enforce the 26th
Amendment, which extends the right to vote to citizens 18 years of age (42
U.S.C. § 1973[bb]).
A few other statutes provided for
direct appeals, non-discretionary review, or both, in special types of cases:
the Regional Rail Reorganization Act of 1973, Section 25 of the Federal
Insecticide, Fungicide and Rodenticide Act, and the Trans-Alaska Pipeline
Two related statutes administered by
the Federal Election Commission provided for different methods of direct
Suits arising under the Presidential
Election Campaign Fund Act of 1971 (26 U.S.C. §§ 9010[c] and 9011) were to be
heard by three-judge district courts, with appeal to the Supreme Court.
Cases involving the constitutionality of
the Federal Election Campaign Act (2 U.S.C. § 437[h]) were to be filed in a
single-judge district court, which then was to certify all questions of
constitutionality to the court of appeals sitting en banc. The decision of the
court of appeals would then be reviewable by the Supreme Court on direct appeal.
Several cases challenging these
statutes were heard by an overlapping court consisting of the members of the
three-judge court and the judges of the court of appeals en banc, all of whom
concurred in the conclusion reached. The Supreme Court found it unnecessary to
decide which court had jurisdiction. Buckley v. Valeo, 424 U.S. 1,
9-10 (1976); Clark v. Valeo, 559 F.2d 642 (D.C. Cir.), aff’d 431
U.S. 950 (1977).
The repeal in the 1970s of a
substantial number of the mandatory-appeal statutes relieved the Supreme Court
of part, but not all, of what it deemed an unnecessary burden. The only remedy
upon which there has been general agreement of the entire Court—plus the
Judicial Conference of the United States, the Justice Department, the Freund
Study Group and the ABA—has been that the Court’s mandatory jurisdiction should
be abolished or drastically curtailed.
As the Court explained in a 1982 letter
to Congress signed by all the justices in support of a predecessor to the 1988
Act: "The present mandatory jurisdiction provisions permit litigants to require
cases to be decided by the Supreme Court of the United States without regard to
the importance of the issue presented or their impact on the general public.
Unfortunately, there is no correlation between the difficulty of the legal
issues presented in a case and the importance of the issue to the general
public. For this reason, the Court must often call for full briefing and oral
argument [on] difficult issues which are of little significance.
"At present, the Court must devote a
great deal of its limited time and resources on cases which do not, in Chief
Justice Taft’s words, "involve principles, the application of which are of wide
public importance or governmental interest, and which should be authoritatively
declared by the final court.’ … The more time the court must devote to cases of
this type the less time it has to spend on the more important cases facing the
nation. Because the volume of complex and difficult cases continues to grow, it
is even more important that the Court not be burdened by having to deal with
cases that are of significance only to the individual litigants but of no wide
The mandatory appeals were only a part
of a larger problem facing the Court. In 1925, when most cases were transferred
to the Court’s discretionary docket, 750 new cases were filed in the Court; in
1955, 1,644 cases; and in 1985, 4,413. The number of cases that the Court can
handle on the merits has long been about 150 each term.
In 1976, after some of the new statutes
reducing the types of orders reviewable by mandatory appeal took hold, 311
appeals were filed, the remainder being petitions for certiorari. If any large
portion of the appeals had been given plenary treatment, the Court could not
possibly have kept up with its docket.
To alleviate this problem the Court has
managed to dispose of the bulk of the appeals summarily without full briefing
and oral argument. But this created another difficulty. As stated in the Court’s
"Unfortunately, these summary decisions
are decisions on the merits which are binding on state courts and other federal
courts. See Mandel v. Bradley, 432 U.S. 172 (1977); Hicks
v. Miranda, 422 U.S. 332 (1975). Because they are summary in nature these
dispositions often also provide uncertain guidelines for the courts that are
bound to follow them and, not surprisingly, such decisions sometimes create more
confusion than they seek to resolve.
"The only solution to the problem, and
one that is consistent with the intent of the Judiciary Act of 1925 to give the
Supreme Court discretion to select those cases it deems most important, is to
eliminate or curtail the Court’s mandatory jurisdiction."
In 1976, the Court dismissed 94 appeals
for lack of jurisdiction. One hundred forty-five of the remainder were decided
without opinion, by affirmance or dismissal for want of a substantial federal
question. Fifty-six were decided with opinion after oral argument. This left
time for only about 100 other cases to be argued, out of the 3,700 to 4,000
petitions for certiorari.
In the 1987 term, which ended three
days after the 1988 Act was signed by the president, the Court disposed of 248
appeals, 206 summarily. One hundred twenty were dismissed for lack of
jurisdiction and 83 for lack of a substantial or properly presented federal
question. Thirty-two were accepted for review.
The principal effect of the 1988 Act is
to repeal the remaining laws which had produced almost all of the mandatory
appeals in recent years: Sections 1252, 1254(2), and 1257(1) and (2) of Title
28. These sections allowed appeals when federal courts held federal or state
statutes unconstitutional, or when state courts held federal laws invalid or
state laws valid against a challenge under federal law.
The new act also eliminates the
provisions for non-discretionary Supreme Court review under the Regional Rail
Reorganization Act, the Insecticide, Fungicide and Rodenticide Act, the Federal
Election Campaign Act (but not the Presidential Election Campaign Fund Act) and
the Alaska Pipeline Authorization Act. Few, if any, cases had arisen in recent
years under any of those laws, none in the last term of the Court.
The new act does not touch the
provisions for non-discretionary appeals in reapportionment cases or in cases
under the Civil Rights and Voting Rights Acts, the antitrust laws, or the
Presidential Election Campaign Fund Act. There have been few such appeals in
recent years. Apportionment cases and others relating to elections may arise
after each census.
The new statute, combined with its
predecessors, should accomplish the court’s objective of eliminating almost all
of the mandatory appeals. There were 311 such appeals in 1976, 218 in 1980, and
248 in the 1987 term. The number argued and decided on the merits declined from
56 in 1976 to 28 in both 1980 and 1987. Thirty-two appeals were accepted for
review during the last term; none of those appeals would have been appealable
under the new statute.
Whether the elimination of the
obligatory appeals will save the Supreme Court a great deal of time is open to
doubt. The cases in the 1987 term that came to the Court by appeal would not
have disappeared from the Court’s docket—they almost certainly would have been
presented by petition for certiorari.
In theory the Court should spend less
time determining whether or not to grant certiorari than deciding how to dispose
of an appeal without oral argument. A justice passing on a petition for
certiorari need only determine whether the case contains an issue important
enough for the Court to review—which, as a practical matter, means important
enough to be one of the 150 cases the Court has time to hear in a term.
A justice deciding whether and how an
appeal should be disposed of summarily, on the other hand, must first pass upon
the Court’s jurisdiction over the appeal (often a technical and difficult
question); and, if the Court has jurisdiction, consider the merits of the case,
and whether oral argument is justified. That may require digging into the case
more thoroughly than a mere reading of a law clerk’s short memorandum, which is
all some justices do in reviewing many petitions for certiorari.
The saving in time may not be very
great, however. The Court’s rules specify that both petitions for certiorari and
jurisdictional statements for appeals "shall be as short as possible, but may
not exceed 30 pages." The same restrictions apply to the opposing documents. The
provisions as to what should be included in those documents, as well as in the
appendices to be attached to them, are likewise very similar. Thus, the amount
of reading material placed before the justices is about the same in both types
of cases. Whether they read more or cogitated at greater length for the appeals,
only the justices know.
All that can be deduced from the above
is that the justices may have taken more time to decide whether to hear an
appeal than to grant a petition for certiorari, but not very much more.
Whether the elimination of appeals will
save the Court’s time or enable it to hear more important cases on the merits
also will depend on how many of the cases heard on appeal would have been
accepted on petition for certiorari. A quick reading of the opinions in the 28
appeals argued during the 1987 term gives the impression that discretionary
review would have been granted in most of them.
Chief Justice Rehnquist, speaking near
the end of the 1986 term, stated that "during the last five Terms of our Court,
the cases decided on the merits which came by way of appeal rather than by way
of certiorari averaged about 35 per Term. … Perhaps we would have granted
certiorari in some of these cases had they come to us that way rather than by
appeal. But if you assume that in only half of them certiorari would have been
denied, this change would give us some 15 or 20 new slots."
The chief justice’s assumption is
somewhat higher than our estimate of the number for which certiorari would have
been denied during the last term. But whether the number is 14 or less or 20,
the number of slots that would have been made available for other cases is not
very great. It could, however, have made room for a substantial number of the
admitted conflicts in the courts of appeals which the Supreme Court refused to
The new act provides that it shall not
affect cases pending in the Supreme Court on the effective date (Sept. 25,
1988), or that seek review of judgments or decrees entered before then. This
means that the Court will continue to receive a number of appeals during the
fall of 1988 but hardly any thereafter.
There may be some lawyers who
mistakenly will take an appeal instead of petitioning for certiorari. Prior to
the 1988 Act, Section 2103 of 28 U.S.C. provided that appeals improperly taken
to the Supreme Court from the highest court of a state or a federal court of
appeals should be "regarded and acted on" as a petition for certiorari. But
Section 2103 was repealed by the new act. The Senate Committee Report (No.
100-300, p. 7) stated: "Since mandatory appeals from these courts will no longer
exist after enactment of this legislation, Section 2103 is superfluous."
Petitioning for certiorari is simpler
than appealing. The Court could reasonably treat a jurisdictional statement
filed within the certiorari time limit as merely a mislabeled petition for
certiorari, since, as has been noted, the contents of jurisdictional statement
and petitions are very much the same. Whether the Court will as a matter of
discretion be lenient with a party who wrongly files an appeal instead of a
petition for certiorari cannot be foretold.
For a time, at least, no further effort
to alleviate the Court’s workload can be expected. Whether anything more will be
done will depend on whether the Court, and ultimately the bar, the public and
Congress, conclude that the abolition of the Court’s mandatory jurisdiction has
been sufficient to solve the Court’s workload problem.
The authors are co-authors of
Court Practice" (6th ed. 1986). Robert L.
Stern and Stephen M. Shapiro are partners in Mayer, Brown & Platt in
Chicago, and Eugene Gressman is Distinguished Visiting Professor at Seton Hall
University Law School, Newark, N.J. Other possible, though unlikely, solutions
are discussed by Robert Stern in Judicature,
August-September 1988; and "Appellate Practice in the United States"
(2d ed. 1988).
[Copyright © 1999 Mayer, Brown
& Platt. This Mayer, Brown & Platt article provides information and
comments on legal issues and developments of interest to our clients and
friends. The foregoing is not a comprehensive treatment of the subject matter
covered and is not intended to provide legal advice. Readers should seek
specific legal advice before taking any action with respect to the matters