Reflections on the role of appellate courts: a view from the Supreme Court.

• Author: Breyer, Stephen G.

Not long ago, I sat on a panel with two distinguished law professors who were discussing the jurisprudence of the modern Supreme Court. One of the professors addressed what he labeled the three phases of the Rehnquist Court, describing its first phase as radical, its second as more moderate politically, and its third as rational or pragmatic. As a former law professor, I understand that analyzing the Supreme Court is part of a legal academic's job and that offering such classifications is a common feature of scholarly journals. But my reaction is that of a judge, and speaking as a judge, I can say only that the professor's assessment does not capture what the Court feels like internally. Rather than being concerned with various phases, we Justices think of ourselves as facing a set of difficult cases that we try our best to decide. Law professors may want to ascribe philosophical motivations to our opinions, but we see our job as simply to decide the cases before us.

Today, I will provide an overview of how I go about performing that job, from how I determine which petitions for certiorari merit the Court's attention to how I resolve those cases once they arrive. As I offer this sketch of my work at the Court, I will also periodically focus attention on the ways in which the Supreme Court is similar to and different from other appellate courts, including the federal courts of appeals and state supreme courts.

The United States Supreme Court receives about 7500 petitions for certiorari every year, which amounts to about 150 petitions per week. Eight of the nine Justices pool our law clerks so that each clerk assumes responsibility for writing a memo about approximately five petitions every week. Critics might say that I should read every petition and every response, rather than beginning with the law clerks' memos. I think, however, that having Justices read 8000 petitions per year would lead to some undesirable consequences. Consider, for example, handwritten pro se petitions, many of which are extremely difficult to decipher. It is tempting when reading such a petition to throw up one's hands and dismiss the petition as ridiculous. But not all of those petitions are ridiculous. Indeed, some pro se petitions raise important issues that the Supreme Court should resolve. Using the pool system, we have in fact located that needle in the haystack in part because a law clerk reviewing five petitions carefully is more likely to recognize the important issues they raise than is a judge merely skimming 150 petitions.

As I read those petitions I often bear in mind the words of Chief Justice Taft, who observed many years ago that the United States Supreme Court is not a court of error correction. (1) By this, Taft meant that the Supreme Court does not generally determine whether the lower courts have correctly disposed of a particular case. While this statement may sound a bit harsh, it is essential to remember that before petitions reach the Supreme Court the parties have previously had a trial and at least one appeal. Rather than correcting errors, then, the Supreme Court is charged with providing a uniform rule of federal law in areas that require one. If every lower court that has addressed a question arrives at the same answer, it is difficult to understand why the Supreme Court should weigh in on the matter. If, however, lower courts disagree about how to answer a particular legal question, the Supreme Court is considerably more likely to hear the case.

A lower court split, then, is a major part of what I look for when I review the stack of memos prepared by the clerks. Once I have narrowed the stack down to the petitions that present likely candidates for review at our Court, I try to decide whether I want to have a particular case discussed at Conference. Instead of relying solely on the law clerks' memos for this narrowed set of petitions, I examine the petition itself, read the opinions below, and discuss the case with my law clerks to determine whether there is a need for uniform federal law in this particular area. This system for sifting through the petitions is far more mechanical than many people suspect. Just as is true of justices on state supreme courts, we do not vote to hear cases simply because we think they raise interesting legal questions.

After we wade through roughly 8000 petitions for...