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SHOULD THE SUPREME COURT AND THE COURT OF
APPEALS BE CONSOLIDATED?
Mr. President, and Ladies and Gentlemen of the Georgia
Bar Association: Ever since the Court of Appeals was established, the bar of Georgia has been trying to solve Goldberg's eternal question, "Now you got it, whatcher you going to do with it?” with the Court of Appeals as the problem.
Hence I feel indebted to the Executive Committee of this Association for giving me twenty minutes within which to settle the question. I am deeply concerned, however, as to what subject the Association will be able to get to take its place for perennial discussion after I shall have done so. Next to the League of Nations covenant it is probable that the lawyers of Georgia have said more and thought less about this question than any other.
Did the Court of Appeals decide a case against me last week? Abolish the blankety-blank court! Or, perhaps, it decided one in my favor? Excellent court! The other lawyer wants it abolished, and that's as good a reason as I know why the court should not be abolished, for the other lawyer has been off his mental equilibrium from the beginning to the end of that case.
A fond father was assisting his fourth-grade daughter with her numbers. (Please note that I say "numbers.” I am proud of that. I am just entering the stage of life when I am proud of showing the ability to adopt any new term or thought.) He worked very easily the simple problem that had caused the little girl much trouble and some tears. Then he began to explain it. As he proceeded the child's face darkened with a frown instead of lighting up with comprehension. And when he finished she said, quite dogmatically, “But that's not right.” “Why isn't it right ?” he asked. “I got the answer, didn't I ?” “Oh! Daddy,” she exclaimed, “you get the answer but your becauses are all wrong."
My “becauses” may be all wrong, but I am sure I have the answer to the question under discussion when I say, “No, the Court of Appeals should not be consolidated with the Supreme Court.” I shall not bore you with statistics. You recall the old witticism dividing lies into three classes on an ascending scale, namely, lies, damned lies and statistics. But that is not my reason for not using them today, for they would be helpful to my position, and since they would be that saying would be a witticism merely without truth or foundation in fact. I refrain from using them simply because the facts that could be supported by statistics are so well known to all of you that it is useless to use them. Besides, statistics have never appealed to me. I leave them to the people whose prime interest in life seems to be to ascertain how much less than a dollar a dollar is worth today, or what the population of their home city is before the census has been announced. I feel quite sure that such people have used them all up anyway, or at least have a corner on the market, and that if I had tried to get any I would have found them soaring in price, like everything else except lawyers' fees.
In the first place I see nothing real in the way of improvement that would be accomplished by the proposed change. Certainly no one would advocate the change simply for the sake of making a change.
Is it a better paid judiciary you are after? The judges of the two courts have always been paid the same. It would be no harder to increase the salaries of the twelve judges of two courts than to increase the salaries of the same number of judges of one court.
Is a different mode of selection of judges the thing most desired? Pray tell me how this is to be accomplished any more quickly or any more easily for the one court than for the two ? :
Is the object to obtain judges of a higher order of ability? How will this be done by changing the position and title of the same persons from that of the Judge of the Court of Appeals to Justice of the Supreme Court? For it must be remembered that every suggestion with reference to the consolidation of the two courts, very properly, I think, carries with it the idea that the present judges of the Court of Appeals shall be transferred to the Supreme Court.
. Or perhaps it is uniformity of decisions that is to be accomplished. It will be well to discuss this question somewhat more elaborately than we have the other questions touched upon.
Under our present system we in fact have three reviewing courts, for the two divisions of the Court of Appeals in effect constitute two courts.
I submit as a matter of common knowledge that one reviewing court cannot do the work absolutely necessary in Georgia today. I do not stop to argue this proposition, for you all know it is true. We should find measures to reduce the review work, for with the present machinery it is impossible for any set of judges or justices, I care not how they may be chosen, or what salaries they may be paid, or what caliber of men they may be, to do satisfactorily to themselves or to the bar the work that the judges and justices of our appellate courts have upon them, under the conditions existing.
I believe in a Supreme Court that is a Supreme Court in fact as well as in name. I say to you very earnestly, as a lawyer who loves his profession and who prizes its traditions, that the position of Justice of the Supreme Court of Georgia is not held in the high public esteem that it should be. That office should be looked upon as the summum
bonum of a Georgia lawyer's life, not only by the bar but by the general public as well. I say to our shame that it is not so, and you know it is not so. And I care not what else you may do toward correcting the evils of our present judicial system, if you leave the Supreme Court a clearing house for the great mass of trash that must needs accumulate in any great judicial system, you lower the dignity and honor of that court, thereby render a position on its bench less desirable and less honorable, and as a consequence lower the standard of the court.
Under the proposal to consolidate the two courts you know and I know that instead of still further restricting the jurisdiction of the Supreme Court you would have to enlarge it. Frankly, I am startled at the proposition to abolish the Court of Appeals by a consolidation or merger with the Supreme Court, and to substitute in its stead a number of intermediate reviewing courts, scattered all over the State, each composed of Superior Court judges sitting as a court of review. Such courts would simply be conduits to the Supreme Court-a lock canal affair, with just another lock added before one would get to his journey's end. And if any such change should be made you would not dare, and I would not dare, to make it otherwise..
I am against the proposal because I do not believe in a Supreme Court for Georgia of more than six justices. All of us are interested in making the Supreme Court more of a six-justice court than it is. It is probably as much of a six-justice court as it can be under the fearful handicaps that it labors. Just think for a minute of a court of six justices - having one copy of the record in a case that is to be decided and three copies of the briefs. This court always considers cases in banc, and I presume all of us are familiar to some extent with the way the work is done, so I do not take time to recount that. Compare this method in your mind if you will with the method followed by the Supreme Court of the United States, which as I
understand is about as follows: After a case is argued, and before the arguments get cold, each justice studies the case and reaches his decision. After all of the justices have done this, the case is called up for decision in a conference among the justices. If one justice states he is not prepared to announce his decision, the case goes over for future determination. The justices are asked to pronounce their decision in the inverse order of appointment, or the youngest in point of service first, the chief justice announcing his decision last.
The chief justice then designates the justice to write the opinion. I am not sure how the designation is made in the event the Court are not agreed and the chief justice is with the minority, but that is unimportant. The great things are that the case is not called for decision by the Court until the justices are ready, all of them, to decide; that the case is not assigned to a justice for an opinion to be written until after its decision; that no tentative opinion is submitted to the Court for approval or disapproval before each justice has studied the case for himself and has reached his own decision, and that a greater familiarity with the case upon the part of one justice does not necessarily exist, indeed ought not to exist at all, and for that reason tend to give his opinion greater weight than it would otherwise have.
An increase in the number of the justices of the Supreme Court of Georgia would not make for a bettering of our present situation. Indeed, the probability is that it would make a worse situation, for the probable result would be that the Court would be divided into divisions pretty much as the Court of Appeals is now, and that instead of having one Supreme Court we would have three or four, sitting separately, deciding cases separatelyand differently—without a higher court to review conflicting decisions.
When I remember that our reviewing courts work with but one copy of the record in a case, and only three copies :