So far, I have tried to establish that, as a matter of history, it is generally accepted that the Supreme Court’s appellate jurisdiction is exercised through wrongful or appellate orders. Certiorari, neither common law nor statute, does not change this, because certiorari simply takes the case to court as if by mistake or appeal. Either way, the court must issue a decision that is consistent with the entire record, not just based on a review of preselection questions selected by judges.
As we saw yesterday, when Taft and the other justices lobbied Congress for broader forensic powers in 1925, they promised Congress that when the court approved the forensics, the justices would examine “the entire case and the every question”. The text of the bill, which was actually drafted by the justices themselves, maintains a clear link between writs of certiorari and writs of error. Everyone agrees.Then came Olmsted.
Olmsted Mainly remembered for its constitutional provisions on wiretapping. The facts of the case involved a sizable conspiracy to traffic illicit alcohol in Washington State during Prohibition. Without a warrant, federal officials violated state regulations by wiretapping the phones of several key players in the scheme. Records of the wiretap were read to the jury during the trial, and the defense repeatedly objected, preserving the evidentiary verdict for an eventual appeal of error. The co-conspirators were found guilty and lost on the Ninth Circuit Court of Appeals. Subsequent petitions for indictment not only included the now-famous constitutional claims, but also raised evidentiary issues. Specifically, the defense argued that it was inappropriate to admit evidence obtained in violation of state law.
Defendants had every reason to think that if the court took up the case, the court would consider both of these issues, since that is what the court has always done and how certiorari-to-error works, but Taft threw a curveball at the defendants. An order to give “limited consideration” to the review on constitutional issues. The court did not explain the brand new order, much less attempt to justify this apparent deviation from statute and tradition.
Nonetheless, Chief Justice Taft opened his opinion by a five-man majority, noting that the scrip “was given the obvious limitation that hearings should be limited to [constitutional] question. He then argued that wiretapping was not a search or seizure under the Constitution. Four dissidents wrote each separately. Brandeis wrote a thorough and colorful dissent arguing that transcriptions should not be allowed as evidence and the Constitution Evidence of grounds. Holmes argues that transcription should not be allowed for evidentiary reasons to avoid constitutional issues. Stone agrees with Brandeis, but writes separately that the court’s limited authority does not “limit” The court from considering any issues raised in the records we found, “since the certiorari simply referred the case to the court,” has the same effect as if a lawsuit were brought [here] By unrestricted error or appeal order. On the other hand, Butler argues that the evidential arguments are “not within the jurisdiction of the order taken,” so he will ignore them and overrule them on constitutional grounds.
Most people are in some kind of middle ground when it comes to jurisdiction. Apparently annoyed that dissidents raise illegal forensic questions. After explaining the majority’s decision on the constitutional issue, Taft asserted that the interpretation “addresses the only issue within the scope of our affidavit provision.” However, since “some of us, deviating from the order, have concluded that there is merit in the debate over the admission of unlawfully obtained evidence,” most continue to address the issues.
the opinion of Olmsted Most appear to be courts Can beyond the command granted to certiorari and consider other parts of the record if it wanted to, but the court does not have to. That is, the majority abandoned the historical understanding — and the justices’ commitment to Congress — to conduct an appellate review after the clerk’s order called for a full review of the record. Instead, judges use certiorari to review what they want when they want.
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So it turns out that the court’s power to pre-select questions is not justified by history, text, or congressional intent. Instead, it’s a power the court has acquired on its own without providing any reason, and after promising Congress it won’t. Once it gets away with it, it keeps pushing, and the courts amass more discretion and power. In 1939, it amended the relevant rules for the examination of applications to limit examination to the issues raised in the application. It began treating its mandatory docket as discretionary, effectively ending the proof of question as a meaningful avenue for review, giving itself more flexibility in cases from states and giving its original jurisdiction full discretion.
One last bit of irony.less than a year later Olmstedcourt in Maryland Casualty v. JonesOnce again, its order explicitly limited the review to one question: “Whether the Circuit Court of Appeals erroneously failed to review the district court’s decision at trial, except at the time and duly instituted by the Exceptions Act.” The court ruled that it had and overturned.
The court — “as if the action had been brought by an unrestricted writ of wrong” — reviewed the Ninth Circuit, which also proceeded under the writ of wrong. The court limited review to the question of whether the Ninth Circuit had wrongly chosen itself. It then overturned the lower court for failing to review the entire record. In fact, the court’s penalty to the Ninth Circuit is exactly what the Supreme Court did: pick and choose when litigating under a wrongful order. As we’ll see tomorrow, this isn’t the last time the court will let others play by the rules, and the court won’t hesitate to break itself.