So far, I’ve tried to establish that, as a historical matter, it was universally understood that the Supreme Court’s appellate jurisdiction flowed through the writ of error or appeal. Certiorari, whether common law or statutory, didn’t change that, since certiorari simply brought the case to the Court as if on error or appeal. Either way, the Court had to issue a decision that was consistent with the entire record, not just based on review of preselected questions of the justices’ choosing.
As we saw yesterday, when Taft and the other justices lobbied Congress for more extensive certiorari powers in 1925, they promised Congress that when the Court granted certiorari, the justices would review “the whole case and every question presented in it.” The bill’s text, which was in truth drafted by the justices themselves, maintained the explicit link between certiorari and the writ of error. Everyone was in accord. And then came Olmstead.
Olmstead is mostly remembered for its constitutional holding regarding wiretapping. The facts of the case involve a somewhat large conspiracy to traffic in illicit alcohol in Washington State during Prohibition. Without a warrant, federal officials tapped the phones of several key players in the scheme in violation of a state statute. The transcripts from the taps were read to the jury during trial, and the defense objected repeatedly, thus preserving the evidentiary ruling for an eventual appeal on error. The conspirators were convicted and lost their appeal at the Ninth Circuit. The subsequent certiorari petitions included not only the now famous constitutional claims, but they also raised the evidentiary issue. Specifically, the defense argued it was improper to admit evidence obtained in violation of state law.
The defendants had every reason to think the Court would consider both issues if it took the case, since this was the unbroken practice of the Court and the way certiorari-to-error worked, but Taft threw the defendants a curveball. The order granting certiorari “limited consideration” to the constitutional question. The Court did not explain this entirely novel order, much less attempt to justify this striking deviation from statute and tradition.
Nonetheless, writing for a five-member majority, Chief Justice Taft’s opinion opened by noting that certiorari was “granted with the distinct limitation that the hearing should be confined to the [constitutional] question.” His opinion then held that wiretaps were not searches or seizures under the Constitution. The four dissenters each wrote separately. Brandeis wrote a thorough and colorful dissent arguing that the transcripts should not have been allowed into evidence on both evidentiary and constitutional grounds. Holmes thought the transcripts should be disallowed for evidentiary reasons and the constitutional question avoided. Stone agreed with Brandeis, but wrote separately to assert that the Court’s limited grant did not “restrain” the Court from a consideration of any question which we find to be presented by the record,” since the certiorari simply brought the case to the Court “with like effect, as if the cause had been brought [here] by unrestricted writ of error or appeal.” Butler, on the other hand, believed that the evidentiary arguments were “not within the jurisdiction taken by the order,” so he would ignore them and reverse on the constitutional grounds.
The majority occupies something of a middle ground on this jurisdictional question. It was plainly annoyed at the dissenters for raising the matter of illegally obtained evidence. After explaining the majority’s decision on the constitutional question, Taft averred that said explanation “disposes of the only question that comes within the terms of our order granting certiorari.” However, since “some of our number, departing from that order, have concluded that there is merit” in arguments about admitting illegally evidence, the majority went on to deal with those questions.
The view of the Olmstead majority seemed to be that the Court could go beyond the order granting certiorari and consider other parts of the record if it wanted to, but the Court did not have to. That is, the majority abandoned the historical understanding—and the justices’ promises to Congress—that appellate review after certiorari mandated a comprehensive review of the record. Instead, justices would use certiorari to review what they wanted to when they wanted to.
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So, it turns out the Court’s power to preselect questions is not justified by history, text, or congressional intent. Instead, it is a power the Court took for itself without even offering a justification and after promising Congress it would not do this. Once it got away with this, it kept pushing, and the Court accumulated ever more discretion and power. In 1939, it amended its relevant rule governing certiorari petitions to limit review to the questions presented in the petition. It began to treat its docket as if it were mandatory discretion, effectively ended question certification as a meaningful pathway to review, gave itself more flexibility over cases emerging from the states, and made its original jurisdiction entirely discretionary.
One last bit of irony. Less than one year after Olmsteadthe Court granted certiorari in Maryland Casualty v. Jones. Again, its order explicitly limited review to a single question: “whether the Circuit Court of Appeals erred in failing to review the rulings of the District Court in the progress of the trial, excepted to at the time and duly presented by a bill of exceptions .” The Court decided it had and reversed.
The Court—proceeding “as if the cause had been brought there by unrestricted writ of error”—reviewed the Ninth Circuit, which was also proceeding on a writ of error. The Court limited review to the question of whether the Ninth Circuit erred in picking its own questions. It then reversed the lower court for failing to review the entire record. In effect, the Court slapped down the Ninth Circuit for doing exactly what the Supreme Court was doing: cherry-picking questions when proceeding according to a writ of error. As we will see tomorrow, this was not the last time the Court made others live up to rules the Court had no hesitation breaking itself.