United States v. Shannon/Dissent Douglas
Mr. Justice DOUGLAS, dissenting.

First. If the Shannons were the only plaintiffs in the action, I assume that the Anti-Assignment Act, R.S. § 3477, would bar a recovery. But the Shannons-the assignees-have joined the Boshamers-the assignors-as defendants. Hence all the parties who can possibly be affected by the assignment are before the Court. Certainly the Boshamers could recover from the United States and, if the assignment were treated as void (as against the United States), any recovery by the Bosham.

Mr. Justice FRANKFURTER.

I would dismiss these writs of certiorari.

After the argument of these cases it became manifest that they were legal sports. Each presents a unique set of circumstances. Neither is likely to recur; both are individualized instances outside the scope of those considerations of importance which alone, as a matter of sound judicial discretion, justify disposition of a writ of certiorari on the merits.

The controlling purpose of the radical reforms introduced by the Judiciary Act of 1925, 28 U.S.C.A., reinforced by an exercise of the Court's rule-making power in regard to the residual jurisdiction on appeal (see Rule 12, 28 U.S.C.A., and 275 U.S. 603 604, 43 Harv.L.Rev. 33, 42 et seq.) was to put the right to come here, for all practical purposes, in the Court's judicial discretion. Needless to say, the reason for this is to enable the Court to adjudicate wisely, and therefore after adequate deliberation, the controversies that make the Court's existence indispensable under our Federal system.

From time to time some cases which ought never to have been here in the first instance are bound to reach the stage of argument, despite the process by which the wheat of worthy petitions for certiorari is sifted from the vast chaff of cases for which review is sought here, too often because of the blind litigiousness of parties or of the irresponsibility and excessive zeal of their counsel. Since the Judiciary Act of 1925, successive Chief Justices have repeatedly brought this abuse of the certiorari privilege to the attention of the Bar, but thus far without avail. When it is considered that at the last Term the Court passed on 987 such petitions, it is surprising, not that petitions are granted that escaped appropriate weeding-out-and, parenthetically, that a few are inappropriately denied-but that the process of rejection works as well as it does.  And of course disposition of this volume of petitions for certiorari is the smaller part of the Court's work. 

The fact that a case inappropriate for review escaped denial through a weeding-out process that is bound to be circumscribed, is no reason for compounding the oversight by disposing of such a case on the merits, after argument has made more luminously clear than did the preliminary examination of the papers that the litigation ought to be allowed to rest where it is by dismissing the writ. The reason for this was set forth on behalf of the Court by Mr. Chief Justice Taft: 'If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public, as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the Circuit Courts of Appeals. The present case certainly comes under neither head.' Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712.

In fairness to the effective adjudication of those cases for which the Court sits, the Court has again and again acted on these considerations and dismissed the writ as 'improvidently granted' after the preliminary and necessarily tentative consideration of the petition.  These reasons are especially compelling when the Court's mistake in assuming that an important issue of general law was involved does not survive argument as to cases like the present, which were part of the vast summer accumulation of petitions to come before the Court at the opening of the Term.  ers would in equity belong to the Shannons. See Martin v. National Surety Co., 300 U.S. 588, 597, 57 S.Ct. 531, 535, 81 L.Ed. 822. If they can recover, I see no reason, except a narrow conceptual one, why in this proceeding the entire controversy cannot be settled. The judgment obtained by the Boshamers against the United States would in good conscience have to be held in trust for the Shannons.

Second. The suggestion that the writ be dismissed as improvidently granted raises a recurring problem in the administration of the business of the Court. A Justice who has voted to deny the writ of certiorari is in no position after argument to vote to dismiss the writ as improvidently granted. Only those who have voted to grant the writ have that privilege. The reason strikes deep. If after the writ is granted or after argument, those who voted to deny certiorari vote to dismiss the writ as improvidently granted, the integrity of our certiorari jurisdiction is impaired. By long practice-announced to the Congress and well-known to this Bar-it takes four votes out of a Court of nine to grant a petition for certiorari. If four can grant and the opposing five dismiss, then the four cannot get a decision of the case on the merits. The integrity of the four-vote rule on certiorari would then be impaired.

For separate opinion of Mr. Justice FRANKFURTER see 342 U.S. 288, 72 S.Ct. 286. 

Notes