Tidewater Oil Co. v. United States/Dissent Douglas

by William O. Douglas

[p174] MR. JUSTICE DOUGLAS, dissenting.

I agree with MR. JUSTICE STEWART that the appeal of the interlocutory order in this case to the Court of Appeals under 28 U.S.C. § 1292 (b) was not barred by the Expediting Act. But I disagree with the intimations in both the majority opinion and the other dissenting opinion that because of our overwork the antitrust cases should first be routed to the courts of appeals and only then brought here.^[1]

The case for our "overwork" is a myth. The total number of cases filed has increased from 1063 cases in the 1939 Term to 3643 in the 1971 Term. That increase has largely been in the in forma pauperis cases, 117 being filed in the 1939 Term and 1930 in the 1971 Term. But we grant certiorari or note probable jurisdiction in very few cases. The signed opinions of the Court (which are only in argued cases) totaled 137 in the 1939 Term with [p175] six per curiams^[2] or a total of 143 Court opinions, while in the 1971 Term we had 129 signed opinions of the Court and 20 per curiams^[3] or a total of 149 Court opinions. So in terms of petitions for certiorari granted and appeals noted and set for argument our load today is substantially what it was 33 years ago.

The load of work so far as processing cases is concerned has increased. That work is important; and in many ways it is the most important work we do. For the selection of cases across the broad spectrum of issues presented is the very heart of the judicial process. Once our jurisdiction was largely mandatory and the backlog of cases piled high. The 1925 Act^[4] changed all that, leaving to the Court the selection of those certiorari cases which seem important to the public interest. The control of the docket was left to the minority, only four votes out of nine being necessary to grant a petition. The review or sifting of these petitions is in many respects the most important and, I think, the most interesting of all our functions. Across the screen each Term come the worries and concerns of the American people—high and low—presented in concrete, tangible form. Most of these cases have been before two or more courts already; and it is seldom important that a third or fourth review be granted. But we have national standards for many of our federal-state problems and it is important, where they control, that the national standards be uniform; and it is equally important where state law is supreme, that the States be allowed to experiment with various approaches and solutions.

Neither taking that jurisdiction from us nor the device of reducing our jurisdiction is necessary for the performance [p176] of our duties. We are, if anything, underworked, not overworked. Our time is largely spent in the fascinating task of reading petitions for certiorari and jurisdictional statements. The number of cases taken or put down for oral argument has not materially increased in the last 30 years.

The Expediting Act, 15 U.S.C. § 28, 29, involved in the present case, does not contribute materially to our caseload. In the 1967 term we had 12 such cases but only three of them were argued, the others being disposed of summarily. In the 1968 Term we had eight, but only three were argued. In the 1969 Term we had four; only two being argued. In the 1970 Term only two such cases reached us and each was argued. In the 1971 Term four such cases reached us, two of them being argued.^[5]

If there are any courts that are surfeited, they are the courts of appeals. In my Circuit—the Ninth—it is not uncommon for a judge to write over 50 opinions for the court in one term. That Circuit has at the present time a 15-month backlog of civil cases, while we are current. The average number of signed opinions for the Court in [p177] this Court is close to 12 per Justice; only occasionally does anyone write even as many as 18; and we have no backlog.

Separate opinions—including dissents and concurring opinions—multiply. If they are added to the total of 149 for the 1971 Term, the overall number would be 328. But the writing of concurrences, dissents, or separate opinions is wholly in the discretion of the Justice. It is not mandatory work; it is writing done in the vast leisure time we presently have.

The antitrust cases are only small fractions of our caseload. Yet they represent large issues of importance to the economy, to consumers, and to the maintenance of the free-enterprise system. Congress has expressed in the Sherman Act,^[6] the Clayton Act,^[7] the Robinson-Patman Act,^[8] and the Celler-Kefauver Act^[9] a clear policy to keep the avenues of business open, to bar monopolies, and to save the country from the cartel system which is the product of gargantuan growth.

It is of course for Congress and Congress alone to determine whether the Expediting Act^[10] should bring the [p178] antitrust cases directly here. While I join the statutory construction in MR. JUSTICE STEWART's dissent, I do not join that part which expresses to me an inaccurate account of the "overwork" of the Court. We are vastly underworked. One interest in history will discover that once upon a time Hugo Black wrote over 30 opinions for the Court in a Term where only 135 opinions were written for the Court, a few more than we all wrote last Term.

Notes

1. It is true that several Justices over the years have expressed the desire that the antitrust cases come to us only by certiorari to the courts of appeals. So far as I am aware the only opinion speaking for the Court containing that suggestion is United States v. Singer Mfg. Co., 374 U.S. 174. But there the idea was contained only in a footnote (id., at 175 n. 1); and as Mr. Chief Justice Hughes was wont to say, "Footnotes do not really count."
2. Not including orders of dismissal or affirmance.
3. Including orders of dismissal or affirmance.
4. Judiciary Act of Feb. 13, 1925, 43 Stat. 936.
5. Ford Motor Co. v. United States, 405 U.S. 562; United States v. Topco Associates, 405 U.S. 596.

   The antitrust cases not argued in the 1967-1971 Terms were either reversed out of hand or affirmed out of hand (some of these being companion cases to those that were argued), or dismissed as moot, or dismissed for want of jurisdiction. There were three dismissed for want of jurisdiction.

   Farbenfabriken Bayer A.G. v. United States, 393 U.S. 216, involved an interlocutory order in which we ruled that we had no jurisdiction. Standard Fruit & S.S. Co. v. United Fruit Co., 393 U.S. 406, involved an effort of a corporation, not a party, to inspect the divestiture plans being submitted to the District Court pursuant to a consent judgment. Garrett Freightlines v. United States, 405 U.S. 1035, involved an appeal from a defendant dismissed from the antitrust case because of the primary jurisdiction of the Interstate Commerce Commission over the acquisition in question.

6. Sherman Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209, 15 U.S.C. §§ 1-7.
7. Clayton Act of Oct. 15, 1914, 38 Stat. 730, 15 U.S.C. § 12 et seq., § 44.
8. Robinson-Patman Act of June 19, 1936, 49 Stat. 1526, 15 U.S.C. §§ 13, 13a, 13b, 21a, 1013.
9. Celler-Kefauver Act of Dec. 29, 1950, 64 Stat. 1125, 15 U.S.C. §§ 18, 21.
10. For the legislative history of the Act see H.R. Rep. No. 3020, 57th Cong., 2d Sess.

    Senator Fairbanks, leading exponent of the Act, said in reporting it to the Senate: "The far-reaching importance of the cases arising under antitrust laws now upon the statute books or hereafter to be enacted, and the general public interest therein, are such that every reasonable means should be provided for speeding the litigation. It is the purpose of the bill to expedite litigation of great and general importance. It has no other object." 36 Cong. Rec. 1679.