Judiciary Act of 1925.

Induced by a caseload crisis stimulated by *World War I, the “Judges Bill,” as the 1925 Judiciary Act was popularly known, aimed to scale back the Court’s docket to fit its decision-making capacity by ultimately empowering the Court to set its own agenda in selecting cases to hear as well as specific questions to answer. Chief Justice William Howard *Taft promoted the measure as an administrative-efficiency reform. But the 1925 act also entailed profound policy consequences. Among them were radical changes in the Court’s function and relationship to litigants and in the institutional ecology of its opinions, enhanced institutional separation from Congress and the lower courts, elevated power and status for the courts of appeal that became final courts of review in some 98 percent of all appellate cases, and, as Taft proposed, assurance of national judicial supremacy.

The bill provided for contraction of the Court’s mandatory jurisdiction historically invoked through writs of *error or *appeal and expansion of its discretionary jurisdiction invoked by writs of *certiorari. The proposal emanated from a preexisting Court committee reconstituted by Taft after his appointment to the *chief justiceship in 1921 and supported 8 to 1 (Brandeis) by the brethren. The committee was composed of Justices William *Day (succeeded by George *Sutherland), James *McReynolds, and chairman Willis *Van Devanter, who drafted the bill. The chief justice energetically lobbied for congressional action beginning in 1922, mobilized American Bar Association support, and together with his colleagues, testified before congressional judiciary committees.

The original bill eliminated all obligatory review of decisions from federal courts of appeals, but retained mandatory oversight of cases decided by *state courts that raised *federal questions. Nationalistic impulses were thus to counter state legislation considered inimical to federally protected rights, especially that of *private property. A Senate amendment modified the measure to conform to *dual federalism tenets. The bill as enacted by a deferential Congress required obligatory appeals for *state court decisions holding against the validity of a federal statute of treaty and required review of federal courts of appeals decisions denying the constitutionality of state statutes. But the act retained discretionary certiorari review for state court decisions upholding the constitutionality of federal statutes and for those upholding or invalidating a state act allegedly repugnant to the national Constitution, laws, or treaties. Courts of appeal decisions upholding the constitutionality or, until 1937, invalidating a federal statute and those affirming on federal grounds the validity of *state actions were subject to discretionary review by certiorari. Although courts of appeal might still certify cases to the Court, the 1925 act eliminated much of the Supreme Court’s mandatory caseload flowing from these courts and, with specific exceptions, from federal district courts. The Court’s remaining mandatory jurisdiction contracted, eroded by summary disposition strategies and statutory constriction, until its virtual elimination by the 1988 *Judicial Improvements and Access to Justice Act.

The 1925 act immediately cut the Court’s backlog and dramatically reduced the number and proportion of appellate cases decided by full opinions. It altered cases to render them law-shaping instruments of judicial policy, and, after 1930, sharply increased the proportion of nonunanimous opinions. With the act, the Supreme Court was transformed from a forum that primarily corrected errors arising in ordinary private litigation to a constitutional tribunal that resolved public policy issues of national importance.

The act made case questions selection a critical step in the decision-making process as certiorari petitions ballooned from 586 (117 granted) in the 1926 term to 9,195 (88 granted) in the 2001 term. A notable decline in cases accepted for plenary review related to changes in the screening process under Chief Justice *Rehnquist. Criteria for granting certiorari has been publicized in Court-drafted rules (Rule 10 [2003]) and in explanatory opinions such as Singleton v. Commissioner of Internal Revenue (1978). The discretionary writ is granted under the *“rule of four” (four justices must vote affirmatively on a “certworthy” appeal), although the vote margin is usually greater than four. Voting on petitions for certiorari occurs in conference and is veiled in secrecy. Individual votes reflect varied considerations responsive to formal criteria and to factors internal to the Court or judiciary and to external political actors.

Subject only to intermittent and highly selective Supreme Court supervision, the courts of appeal have become largely autonomous centers of *judicial power. Their augmented status encouraged statutory separation in 1939 of lower court administration from executive branch control.

(p. 550) Efforts in the 1970s to divert the Supreme Court’s reputedly burdensome task of selecting cases to a “National Court of Appeals” provoked effective opposition grounded on the conviction that the screening function permitted the Court to control its own agenda, thereby enabling it to make and change the Constitution. Under the 1925 act, the Court exercises “will” as distinguished from “judgment,” ever challenging the classic foundation of *judicial review.

Edward A. Harnett, “Questioning Certiorari: Some Reflections Seventy-Five Years after the Judges’ Bill,” Columbia Law Review 100 (2000): 1643. H. W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court (1991). Robert Post, “The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decision-making in the Taft Court,” Minnesota Law Review 85 (2001): 1267.

Peter G. Fish