Topic: How Will You Choose Which Cases to Hear?
Senator: Kohl
Date: SEPTEMBER 14, 2005
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SPECTER: The committee will resume.
Senator Kohl, 20 minutes.
KOHL: Judge Roberts?
ROBERTS: Senator?
KOHL: We spent quite a bit of time yesterday discussing how you would decide cases. And as we all know, it is your view that Supreme Court justices are umpires who are neutrally deciding cases.
I want to discuss with you another area where I believe your analogy falls somewhat short.
The Supreme Court not only, as you know, has the power to decide cases and to construe the Constitution, but it also has the sole and the absolute power to decide which cases it hears, which cases it decides, which parties get to be heard, and which parties do not get to be heard.
So if you're confirmed, you will get to choose which cases will be placed on the Supreme Court's docket with the vote of yourself and only three other justices, as you know. Making this choice, your opinions, your perspectives and your life experiences obviously matter quite a bit. Much more than an umpire calling balls and strikes, you are in that sense a manager who is really setting the field with players to decide what the menu's going to be like.
So this power is really quite important and it's crucial, and it's important that we understand that when we look at your role in terms of your own description.
In recent times, the Supreme Court has received appeals in nearly 7,000 cases a year. And as you know, in recent times the Supreme Court has heard only about 80 cases a year.
In other words, the justices choose to heard about 1 percent of the appeals that they receive.
My question for you, Judge Roberts, is, should you be confirmed, how will you decide which cases will make the cut and will be heard by the Supreme Court and what will guide your complete discretion to choose which cases to hear?
ROBERTS: I appreciate the question, Senator. It is an area where I happily concede that the justices are not acting just like umpires in deciding which cases they're going to hear, as opposed to how they're going to decide them.
My perspective has changed a little bit in this area. Certainly when I was practicing law, a lot of what I spent my time trying to do was get the Supreme Court to take a case.
As you know, you file these things called petitions for certiorari, which are really quite extensive arguments about why the court should hear your case, having really not that much to do with the merits, whether it was right or wrong, but just why the court needs to issue an opinion in this area. And I thought they weren't taking enough cases.
When I became a court of appeals judge, I thought you didn't need to have more cases taken up for review.
ROBERTS: But the considerations, some are pretty well established. The job of the Supreme Court is to ensure the uniformity and consistency of federal law, in particular of interpretations of the Constitution.
So the clearest case that the court should hear, they should grant certiorari on, as they say, is when two different courts of appeals are interpreting a law differently.
Obviously a law should mean the same thing in every part of the country, and if two different courts take a different view of the law, that's the kind of case the court ought to be taking.
I think the court should, as a general matter -- and again, other justices have expressed this view as well -- grant review in cases in which a lower court strikes down an act of Congress. I don't think that's an absolute rule, but certainly as a general matter. If an act of Congress is going to be declared unconstitutional, I think the Supreme Court ought to be the one determining that as a final matter, and generally not leave it to a court of appeals.
So those are two categories: when there's a conflict, when an act is found to be unconstitutional.
Beyond that -- and this is where I agree with you, the umpire analogy does not hold up -- there is a lot of discretion in deciding whether it's the right time to grant review in a case. The people who practice before the court talk about the court letting an issue percolate a little bit; in other words, get more than just one or two decisions from the courts of appeals, wait until others have had a change to weigh in.
The theory is that makes it more likely the Supreme Court will get it right, if they have the benefit of several decisions from the lower courts, rather than just one.
Other cases, justices determine that that's not appropriate. It's not appropriate to wait until the issue develops a little more. They want to look at it expeditiously. And it's hard to lay down categorical rules in that area.
ROBERTS: I have expressed the view, and it may be a view that I'll have to be educated on further if I am confirmed. I'm not stating it as a solid view. I do think there's room for the court to take more cases. They hear about half the number of cases they did 25 years ago.
There may be good reasons for that that I'll learn if I am confirmed. But just looking at it from the outside, I think they could contribute more to the clarity and uniformity of the law by taking more cases.
I have heard others say they could contribute to the clarity and uniformity of the law by taking fewer cases, but I don't subscribe to that view. I think there's room for additional cases on the docket.
KOHL: I think we agree that it's an enormous power, that power of decision. It's a very active power. It's not benign in any way. If justices, for example, decide not to hear a case, whatever the merits, that is the final decision; is that not correct?
ROBERTS: That's right. The decision of the court of appeals stands in that case.
Now, it is true that I think the justices generally look at their duty and obligation to ensure consistency in a fairly dispassionate and objective way. In other words, it doesn't matter how a particular case came out. If it's different in one part of the country and another, most of the justices, in my experience, readily agree that that's the kind of case they need to address.
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