My Dear Senator Wheeler:

In response to your inquiries, I have the honor to present the following statement with respect to the work of the Supreme Court:

1. The Supreme Court is fully abreast of its work. When we rose on March 15 (for the present recess) we have heard argument in cases in which certiorari had been granted only 4 weeks before — February 15.

During the current term, which began last October and which we call "October term, 1936,"we have heard argument on merits in 150 cases (180 numbers) and we have 28 cases (30 numbers) awaiting argument. We shall be able to hear all these cases, and such others as may come up for argument, before our adjournment for the term. There is no congestion of cases upon our calendar.

This gratifying condition has obtained for several years. We have been able for several terms to adjourn after disposing of all cases which are ready to be heard.

2. The cases on our docket are classified as original and appellate. Our original jurisdiction is defined by the Constitution and embraces cases to which States are parties. There are not many of these.. At the present time they number 13 and are in various stages of progress to submission for determination.

Our appellate jurisdiction covers those cases in which appeal is allowed by statute as a matter of right and cases which come to us on writs of certiorari....

3. The statute relating to our appellate jurisdiction is the act of February 13, 1925. *** That act limits to certain cases the appeals which come to Supreme Court as a matter of right. Review in other cases is made to depend upon the allowance by the Supreme Court of a writ of certiorari.

Where the appeal purports to lie as a matter right, the rules of the Supreme Court (rule 12) require the appellant to submit a jurisdictional statement showing that the case falls within that class of appeals and that a substantial question is involved. We examine that statement, and the supporting opposing briefs, and decide whether the Court had jurisdiction. As a result, many frivolous appeals are forthwith dismissed and the way is open for appeals which disclose substantial questions.

4. The act of 1925, limiting appeals as a matter of right and enlarging the provisions for review through certiorari was most carefully considered by Congress. I call attention to the reports of the Judiciary Committees of the Senate and House of Representatives. *** That legislation was deemed essential to enable the Supreme Court to perform its proper function. No single court of last resort, whatever the number of judges, could dispose of cases which arise in this vast country and which litigants would seek to bring up if the right of appeal were unrestricted. Hosts of litigants will take appeals so long as there is a tribunal accessible. In protracted litigation, the advantage is with those who command a long purse. Unmeritorious appeals cause intolerable delays. Such appeals clog the calendar and get in the way of those that have merit.

Under Our Federal system, when litigants have had their cases heard in the courts of first instance, and the trier of the facts, jury or judge, as the case may require, has spoken and the case on the facts and law has been decided, and when the dissatisfied party has been accorded an appeal to the circuit court of appeals, the litigants, so far as mere private interests are concerned, have had their day in court. If further review is to be had by the Supreme Court it must be because of the public interest in the questions involved. That review, for example, should be for the purpose of resolving conflicts in judicial decisions between different circuit courts of appeals or between circuit courts of appeals and State courts where the question is one of State law; or for the purpose of determining constitutional questions or settling the interpretation of statutes; or because of the importance of the questions of law that are involved. Review by the Supreme Court is thus in the interest of the law, its appropriate exposition and enforcement, not in the mere interest of the litigants.

It is obvious that if appeal as a matter of right is restricted to certain described cases, the question whether review should be allowed in other cases must necessarily be confided to some tribunal for determination, and, of course, with respect to review by the Supreme Court, that Court should decide.

5. Granting certiorari is not a matter of favor but of sound judicial discretion. It is not the importance of the parties or the amount of money involved that is in any sense controlling. The action of the Court is governed by its rules....

I should add that petitions of certiorari are not apportioned among the Justices. In all matters before the Court except in the more routine of administration, all the Justices-unless for some reason a Justice is disqualified or unable to act in a particular case- participate in the decision. This applies to the grant or refusal of petitions for certiorari. Further more, petitions for certiorari are granted if four Justices think they should be. A vote by a majority is not required in such cases. Even if two or three of the Justices are strongly of the opinion that certiorari should be allowed, frequently the other Justices will acquiesce in their view, but the petition is always granted if four or so vote.

6. The work of passing upon these applications for certiorari is laborious but the Court is able to perform it adequately, Observations have been made as to the vast number of pages of records and briefs that are submitted in the course of a term. The total is imposing but the suggested conclusion is hasty and rests on an illusory basis. Records are replete with testimony and evidence of facts. But the questions on certiorari are questions of law. So many cases turn on facts, principles of law not being in controversy. It is only when the facts are interwoven with the question of law which we should review that the evidence must be examined and then only to the extent that it is necessary to decide the questions of law.

This at once disposes of a vast number of factual controversies where the parties have been fully heard in the courts below and have no right to burden the Supreme Court with the dispute which interests no one but themselves.

This is also true of controversies over contracts and documents of all sorts which involve only questions of concern to the immediate parties. The applicant for certiorari is required to state in his petition the grounds for his application and in a host cases that disclosure itself disposes of his request. So that the number of pages of records and briefs afford no satisfactory criterion of the actual work involved. It must also be remembered that justices who been dealing with such matters for years have the aid of a long and varied experience in separating chaff from the wheat.

I think that it is safe to say that about 60 percent of the applications for certiorari are wholly without merit and ought never to have been made. The probably about 20 percent or so in addition which have a fair degree of plausibility but which fail to survive critical examination. The remainder, falling short, I believe, of 20 percent, show substantial grounds and are granted. I think that it is the view of the members of the Court that if any error is made in dealing with these applications it is on the side of liberality.

7. An increase in the number of justices Supreme Court, apart from any question of policy which I do not discuss, would not promote the efficiency of the Court. It is believed that it would impair that efficiency so long as the Court acts as a unit, There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of justices is thought to be large enough so far as the prompt, adequate, and efficient conduct of the work of the Court is concerned. As I have said, I do not speak of any considerations in view of the appropriate attitude of the Court in relation to questions of policy

I understand that it has been suggested that with more justices the Court could hear cases in divisions. It is believed that such a plan would be impracticable. A large proportion of the cases we hear are important and a decision by a part of. the Court ,would be unsatisfactory.

I may also call attention to the provisions Article III, Section 1, of the Constitution that the power of the United States shall be vested "in one Supreme Court" and in such inferior courts Congress may from time to time ordain and establish. The Constitution does not appear to authorize two or more Supreme Courts or two more of a supreme court functioning in effect as separate courts.

O account of the shortness of time I have been able to consult with the members of the Court generally with respect to the foregoing statement, but I am confident that it is in accord with the views of the justices. I should say, however, that I have been able to consult with Mr. justice Van Devanter and Mr. justice Brandeis, and I am at liberty to say that the statement is approved by them.