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PER CURIAM DECISIONS of the SUPREME COURT: 1959 TERM This Third Annual Study of the Per Curiam Decisions of the Supreme Court' Has Several Distinct Purposes

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PER CURIAM DECISIONS of the SUPREME COURT: 1959 TERM This Third Annual Study of the Per Curiam Decisions of the Supreme Court' Has Several Distinct Purposes COMMENTS PER CURIAM DECISIONS OF THE SUPREME COURT: 1959 TERM This third annual study of the per curiam decisions of the Supreme Court' has several distinct purposes. Part I contains statistical tables comparing the cases disposed of through per curiam decisions in the term just completed with those of the prior two terms. The tables and accompanying textual discussion are intended to direct attention to the Court's use of the per curiam disposi- tion as a procedural device. In Parts II and III individual decisions are com- mented upon, not necessarily to facilitate generalizations about the Court's per curiam practice, but rather because the substantive problems raised in these cases are felt to be of particular interest. The cases discussed in Part II were decided by the court with no explanation of the grounds for decision other than an occasional citation of authority. These decisions are of the cryp- tic nature commonly associated with the per curiam label. The commentary on them is intended both to provide an analysis of the substantive problems involved and to serve the informative function of disclosing precedents cre- ated during the 1959 Term which would not otherwise be apparent to a reader of the United States Reports. The decisions commented upon in Part III were to some extent, explained by the Court. They differ in no material aspect from cases decided in an opinion signed by an individual justice; the discussion in Part III thus attempts merely to analyze Supreme Court decisions interesting on their merits. I. INTRODUCTION In the 1959 Term, 135 cases were disposed of by per curiam decisions while 97 were decided in full, signed opinions. Of the 135 per curiam cases only 80 are included in the accompanying tables. These are the cases in which the Court passed on the merits of the litigants' contentions or on controversial problems of jurisdiction and procedure. Not included in the tables are the 55 per curiam decisions in which the Court did not pass on the merits of the case and in which only routine application of jurisdictional or procedural rules was involved. Although extended comment upon the data presented in the statis- tical tables would be superfluous, a few points deserve mention. While the number of cases decided by signed opinions decreased only slightly from the 1957 Term through that of 1959,2 a much more striking de- l The previous two studies appear in 26 U. Cm. L. R~v. 279 (1959) and 27 U. CHI. L. REv. 128 (1959). 2 There were 109 cases decided in full opinions in the 1957 Term, 100 in the 1958 Term, and 97 in the 1959 Term. TABLE 1 SUBJECT MATTER PER CURIAMS PRINCIPAL SUBJECT 1957 1958 Adm iralty .......................................... 1 Arm ed Forces ...................................... Bill of Rights: Freedom of Speech ................................ Self-incrim ination ................................. Federal Civil Jurisdiction and Procedure ............... Federal Criminal Cases: Procedure ........................................ Crim es .......................................... Federal Habeas Corpus Procedure ..................... Federal Regulation under the Commerce Clause: Agriculture ....................................... A ntitrust ........................................ C arriers .......................................... Communications .................................. Compensation and Employer's Liability ............. L abor ........................................... Securities .... ............................... Trade Regulation ................................. Fourteenth Amendment: Civil Jurisdiction and Procedure .................... 4 Criminal Procedure ............................... 7 5 Freedom of Speech, Press, Assembly, Religion ........ 3 2 Segregation ...................................... 3 State Statutes .................................... 25 16 Other ................................... 1 5 Immigration and Naturalization ...................... 6 Impairment of Contract ............................. 2 Land Laws ......................................... 3 Patents, Copyrights, Trade Marks .................... 2 1 Power of State Courts ............................... 1 Review of Federal Administrative Agencies (not otherwise classified) .... ............................ State Regulation of Commerce. ............ Statutes and Treaties (not otherwise classified): Federal .......................................... State ............................................ Taxation: Federal .......................................... State ............. ......................... Tort Claims against United States................. Total ........................................ 129 TABLE 2 ORIGIN OF CASES 1959 State Courts ................. 39 Lower Federal Courts ......... 41 Specialized Federal Courts ..... TABLE 3 JURISDICTIONAL BASIS 1957 1958 1959 Certiorari ............ 63 37 38 Appeal .............. 66 59 42 TABLE 4 ORAL ARGUMENT 1957 1958 1959 W ith ................ 19 14 16 Without ............. 110 82 64 TABLE 5 TREATMENT OF CASES 1957 1958 1959 Orally Orally Orally Argued Total Argued Total Argued Total Without explanation or cita- tion .................... 2 68 4 56 2 42 With citation only ......... 6 34 2 14 1 16 With explanation .......... 11 27 8 26 13 22 TABLE 6 DISPOSITION OF CASES 1957 1958 1959 Appeal Dismissed for Want of Substantial Federal Ques- tion ............................................. 31 35 26 Appeal Dismissed ................................... 7 6 Judment Affirmed by an Equally Divided Court ........ 3 3 2 Judgment Affirmed .................................. 29 16 15 Judgment Vacated and Case Remanded for Reconsidera- tion in Light of Authority Cited .................... 11 5 7 Judgment Vacated and Case Remanded with Instructions Other than To Reconsider in Light of Authority Cited. 5 14 11 Judgment Reversed ................................. 31 11 10 Judgment Reversed and Case Remanded ............... 5 5 Judgment Reversed on Confession of Error ............. 9 M iscellaneous ...................................... 4 1 4 TABLE 7 1958 1959 Unaminous Court ............. 73* 59* Concurring Justice(s) .......... 0 0 Dissenting Justice(s) .......... 18t 16t Both Concurring and Dissenting Justices .................... 2 3 Equally Divided Court ........ 3 2 * Each of these totals includes one case in which one Justice was of the opinion that certiorari had been improvidently granted. t Each of these totals includes five cases dismissing appeals in which one or more of the Justices was of the opinion that probable jurisdiction should be noted. to F-c'4 -n .- S' In C' tl r- C> F- C- i o 0 U0 C 0) S C 0) 0 w .0 0,S 0 o0 . 00 t 0)6 0 cd 000 ~ 0.to cd to0) 0)4-' U ,.,~ ~ 0) ~ C ~ o 0)*-. *0 C S~ c ' >C0)0).C~C cd '0 COMMENTS dine is to be noted in the number of per curiam decisions. The reduction in the volume of decisions does not appear to have been deliberately brought about by the Court, since the decrease from the 1958 Term to the 1959 Term is wholly a function of the reduction of the number of cases which arose on appeal rather than on petition for certiorari. Whatever the cause of the reduc- tion, it was accompanied by several other developments. The proportion of the total number of per curiam decisions on which oral argument was heard was higher in the term just completed than in either of the prior two terms. Similarly, the proportion of decisions accompanied by either a citation of authority or by a full explanation increased. As one would expect, it appears that a lessening of the quantitative case burden on the Court has permitted a greater expenditure of judicial time and care on individual cases. The use of the per curiam device which may be of the greatest interest to the bar is represented by an order granting a petition for certiorari accom- panied by a simultaneous decision on the merits of the petitioner's claim. Where the decision is conclusively adverse to the interests of the respondent, this summary mode of disposition has been criticized on the ground that the respondent is not adequately afforded an opportunity to present his arguments to the Court.3 This objection would seem to apply with only slightly dimin- ished force to decisions in which the Court grants certiorari and at the same time modifies the lower court judgment or vacates the judgment and remands the case for further proceedings. In each of these situations, a judgment favor- able to the respondent has been impaired without oral argument and without full briefs on the merits of the controversy. The Court reaches its decision solely on the basis of a petition for certiorari, respondent's brief in opposition and occasionally a reply brief on behalf of the petitioner. Counsel submitting a brief in opposition to a petition for certiorari would appear to be under pres- sure to make an argument considerably different from that which he would make in a brief on the merits of the case. 4 An examination of the incidence in the last three terms of per curiam decisions granting certiorari and at the same time upsetting lower court judgments can be expected to shed light on the magnitude of whatever dangers are inherent in this procedure. The figures in Table 8 show that in the 1958 and 1959 Terms there were sub- 3 See Brown, Forewordto the Supreme Court, 1957 Term, 72 HARV. L. REv. 77 (1958); Note, Supreme Court Per Curiam Practice:A Critique, 69 HARV. L. Rav. 707, 724 (1956). 4 Directives that respondent's brief in opposition be both concise and brief are found in
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