The American Judiciary

by Simeon E. Baldwin

In the Supreme Court of Georgia no costs exceeding $10 can be taxed against the unsuccessful party; and it has had eight hundred cases in one year upon its docket. In most States he has substantial costs to pay. These mainly are to meet the expense of printing the record sent up from the court below. A single case will sometimes fill a volume or even a set of volumes, particularly in equity causes in the federal courts, in which all the testimony is generally written out at length. The appellant has to pay for the printing in the first instance, but ordinarily, if he succeeds, the other party will be obliged to reimburse him. The cost involved is occasionally several thousand dollars.

The party taking the appeal must file a paper stating his grounds for it separately, distinctly, clearly and concisely. There is a temptation to include all that can be thought of, good, bad and indifferent; and whether this is done or not will depend largely on the opinion which the lawyers have of the ability of the court.

In the smaller States the judges have time to enable all to study each case with care. In the largest ones it is not uncommon to assign every case on the docket, in advance of the argument, to a particular judge. He is expected to give it special attention with a view to reporting his conclusions upon it to the court, and, should they be approved in consultation, to writing out its opinion subsequently. The assignment for a term of court is not infrequently made in the order in which the docket (or printed list of cases to be heard) is made out, the chief justice taking the first case, the senior associate justice the second, and so on. At the next term the same practice will be pursued, except that the justice next in seniority to the one who had the last case under the previous assignments will now take the first case on the new list, and the next junior justice the second.

Appellate courts generally sit not over four or five hours a day; this time being either preceded or followed by a consultation. They are seldom in session more than five days in the week. The cases before them are not usually assigned for argument on particular days. A list is made up of all which are ready to be heard, numbered in order, the oldest first. They are then taken up successively as reached, and the counsel concerned in each must be ready at their peril. Often a limit is fixed by rule as to the number of cases that can be called for argument in any one day. In the Supreme Court of the United States this is the practice, and the number is ten. In some of the States it rises as high as twenty.

At the first consultation over a case which has been argued, the Chief Justice (unless a special assignment has been previously made of it to some particular member of the court) asks the junior justice his opinion as to the proper disposition to be made of it, and each justice in turn then gives his, in the reverse order of seniority. If there is any serious disagreement the matter is generally allowed to stand over for further discussion later. At some convenient time after the views of the various justices have been ascertained the cases are distributed and, as a rule, equally for the purpose of preparing the opinions. This distribution is sometimes made by the Chief Justice and sometimes by agreement, or according to the arrangement of the docket.

Until the opinion has been finally adopted it is not usual to announce the decision. Not infrequently the ultimate decision is made the other way, and a new opinion prepared by the same, or, if he remains unconvinced that his first one was wrong, by another judge. Still more often the draft opinion is altered in material points to meet criticisms and avoid dissent.

Dissenting opinions are comparatively rare, particularly in courts where there is a Chief Justice with the qualities of a leader; that is, with ability, learning and tact, each in full measure.[Footnote: Perhaps tact counts the most, for the Chief Justice has the advantage of hearing the opinions of all his associates at all consultations before he gives his own. Senator Hoar makes a pungent comment on Chief Justice Shaw's want of it, in his Autobiography, II, 413.] Every instance of dissent has a certain tendency to weaken the authority of the decision and even of the court. Law should be certain, and the community in which those charged with its judicial administration differ irreconcilably as to what its rules really are, as applied to the transaction of the daily business of life, will have some cause to think that either their laws or their courts are defective and inadequate. For these reasons judges of appellate courts often concur in opinions, of the soundness of which they are only convinced because of the respect they entertain for the good judgment of their associates. They are willing to distrust themselves rather than them.

Not seldom, however, dissent and the preparation of a dissenting opinion has in the course of time, aided, perhaps, by some change of membership, converted the court and led to overruling a position incautiously taken which was inconsistent with settled law.[Footnote: A striking instance of this is the case of Sanderson v. Pennsylvania Coal Co., 86 Pennsylvania State Reports, 401; 94 id., 302; 102 id., 370; 113 id., 126; 6 Atlantic Reporter, 453.]

More than eighty out of every hundred of the opinions delivered in the courts of last resort of each State of the United States, excepting one (New Jersey), and contained in the last volume of the reports of each published prior to June, 1904, were unanimous. In New Jersey seventy-three out of every hundred were. In two States, Maryland and Vermont, there was dissent in but two out of every hundred cases, and in all the States taken together, out of nearly 5,000 cases decided a dissent is stated in 284 only. This made the proportion of unanimous decisions of State courts, in the country at large, to those in which there was dissent nineteen to one.[Footnote: Law Notes for June, 1904, p. 285.]

A dissenting judge sometimes files an opinion which is then printed in full in the reports. More often the fact of his dissent is simply noted. In cases involving constitutional questions it is rare for a dissenting judge not to state his reasons. The importance of the subject justifies if it does not demand it. As Mr. Justice Story once observed, "Upon constitutional questions the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent."[Footnote: Briscoe v. Bank of Kentucky, 11 Peters' Reports, 257, 349.]