preme Court Digest (1948-9 edition), the Federal Digest, the United States Code Annotated (which includes the Supreme Court Rules Annotated) and the Cyclopedia of Federal Procedure.

Such jurisdictional or procedural problems as the meaning of "case or controversy," which lower federal courts are "constitutional" courts and which "legislative," and the significance of the difference, who are proper or necessary parties, under what circumstances a case abates, survives, or becomes mootproblems not peculiar to the Supreme Court-are not within the scope of this volume and are treated only incidentally where they touch upon other matters.

Throughout this book there will necessarily be references to various courts, clerks of courts, and court rules. Unless otherwise indicated, however, "Court" will mean the Supreme Court of the United States, "Clerk" the Clerk of that Court, and "Rules" the Rules of that Court. No attempt is made to deal with all the provisions of the Supreme Court Rules by way of textual treatment. Some of the Rules are obsolete or of little practical significance, although they may affect an occasional case. The Rules in their entirety are printed at pp. 441-470, infra.

The few persons who read the book straight through will discern a certain amount of repetition. But the writers believe that most lawyers do not read a law book like a novel; they turn to the section in which they are interested, and generally prefer not to be met with a cross-reference even though the same material will also be treated elsewhere. Nevertheless, to keep the book from becoming unwieldy, there had to be some limit to the amount of duplication. The result is a not entirely consistent treatment, based upon the authors' best judgment as to when to repeat and when to use a cross-reference.

I

INTRODUCTION TO THE

SUPREME COURT

The Supreme Court consists of the Chief Justice of the United States and eight Associate Justices. Six Justices are necessary to constitute a quorum. 28 U.S.C. §1. The new codification of Title 28 of the United States Code for the first time contains provision for the disposition of all cases in which a quorum is lacking. 28 U.S.C. §2109.1 If the case comes from a United States district court, the Chief Justice may order the case remitted to the appropriate court of appeals to be heard by that court in banc or by its three senior judges, as the order may direct, and the decision of the court of appeals will be final. In all other cases, if a majority of the Supreme Court believe that a quorum will not be available at the following term, the Court shall enter an order affirming the order below with the same effect as if by an equally divided Court. This means that the case is disposed of, but that the decision of the Supreme Court has no precedential value.

The term of the Supreme Court begins on the first Monday of October each year. 28 U.S.C. §2. The first week is devoted to conferences designed to dispose of the petitions for certiorari and other matters which have accumulated over the summer. Arguments are heard commencing the following Monday. The general practice is for the Court to hear argument for two

1

1 The predecessor to this law (58 Stat. 272, 15 U.S.C. $29 (1946)) was passed in order to cope with the impasse created by the inability of the Supreme Court to obtain a quorum to hear United States v. Aluminum Co., 322 U. S. 716, 148 F. 2d 416 (C. A. 2). See also United States v. United States District Court, 334 U. S. 258.

weeks and then to recess for two weeks alternately until about the end of April or the beginning of May, unless the Court orders otherwise.2 Arguments are heard from Monday to Friday, from 12:00 noon to 2:00 P. M. and from 2:30 P. M. to 4:30 P. M.3, and decisions and orders are usually announced at noon on the Mondays of the weeks the Court is in session.

The Court also meets at noon on the Mondays following the two weeks of argument for the purpose of announcing decisions

2 The Court has departed from this schedule in recent terms because of an occasional paucity of cases or the absence of a Justice.

8 The explanation for these hours is probably more historical than rational. In 1898, just before the Court departed from its prior 12 to 4 P. M. schedule to allow a half hour recess for lunch at two o'clock, ex-Attorney General Garland, a leader of the Supreme Court bar, wrote: "The hour of the meeting of the court does not seem to me to be a good one. I should rather think it should commence at ten and one-half A. M. and sit till one P. M. and then take a recess for an hour for refreshments and rest, and then sit from two till four:-this brings in four and one-half hours of hearing and doing court business, and this would be sufficient. There is no peculiar force or enchantment in four hours, and four and one-half could well be substituted. Meeting as the Court does now at twelve M., in the course of an hour the judges show signs of weariness and fatigue, and commence one by one to retire to lunch and sometimes barely a quorum is left; even Mr. Reed, the speaker, with his well known acuteness and adroitness to find a quorum would be puzzled at times to establish the existence of one. And it is true that at the hour from one to two sometimes we do find some of the judges unavoidably

'Napping, napping, only this
And nothing more.'

"The lunch they manage to snatch the way they are now situated can not be very satisfactory. Behind their seats, where persons are passing to and fro, a sort of ad interim or pro tempore restaurant is in progress, and counsel is arguing in front and hears the rattle of dishes, knives and forks, and the judges eating are in a state of unrest, to eat and get back. Of all things eating should be allowed full time and ease. To meet at ten and one-half when the system is comparatively fresh, alive and active, and not yet vexed by work or study, much work can be done till one. And then all may go and recreate and refresh themselves decently and in order, and resume work, not in a doze or a half awake and half asleep condition, but invigorated and reinforced. There is plenty of time in the meanwhile, with Saturdays entirely given to that purpose, for conference and consultation." A. H. Garland, Experience in the U. S. Supreme Court, pp. 62-63 (1898).

The above suggestion still has a good deal of sense to it, despite the slight alleviation of the hunger of the Court and counsel afforded by the opportunity to bolt some food at the 2:00 P. M. recess.

and orders and accepting admissions to the bar. Admissions to the bar and, on rare occasions, motions may be made at the opening of business on any day the Court is in session.

The Court holds conferences on the Saturday of each week during which arguments are heard, as well as on the Saturday preceding each fortnightly period of argument. The conferences normally consider the cases argued during the preceding week, as well as other business before the Court. After the last cases are argued in April or May, the Court continues in session until all cases are disposed of, usually some time in June. During this period the Court convenes only on certain announced Mondays to announce decisions and orders and hear motions for admission to the bar.

The Supreme Court Building is located in Washington, D. C., on the block bounded by 1st Street N.E., East Capitol Street, 2nd Street N.E., and Maryland Avenue, directly across from the Capitol, adjoining the Library of Congress, and a few blocks south of the Union Station. Facilities are available for checking coats and luggage.

Library. A large law library of 160,000 volumes is available for the use of members of the bar of the Supreme Court, Members of Congress, and government attorneys (Rule 4). Small rooms off the Library are provided, with typewriters if needed, in which counsel may work and confer. Transcripts of the records in all Supreme Court cases since 1832 and all briefs since 1854 may be examined in the Library. The Library contains original legislative source material and specially prepared compilations of the legislative history of important recent federal statutes. Books may not be removed from the building, but counsel appearing in a case may request that any books be sent to him in the Courtroom for use during the argument.

Clerk's Office. The Clerk's Office is located in the corridor to the right as one enters the building on the main floor, up the long tier of steps at the entrance. Persons having business with or seeking information from the Clerk's Office will seldom need to see the Clerk personally. If they are concerned with admissions to the bar, they should go to Room 105. If they wish to secure briefs or records, they should go to Room 106, and to get opinions they should go to Room 101. For all other matters, they should proceed to Room 102. The Office is open until 5 P. M. when the Court is in session and until 4:30 P. M. on other week days, including Saturdays.

The Clerk's Office receives all papers which are to be filed with the Supreme Court and distributes them to the Court, administers the Court's calendar and dockets, supervises the printing of records and other papers required to be printed, taxes costs and collects fees, enters orders and judgments and issues mandates, notifies counsel and, where necessary, lower courts of Supreme Court orders and opinions, administers the admissions of attorneys to the bar, and performs other similar duties. The Clerk's Office advises counsel what papers must be filed in printed form and when ten or one typed or multigraphed copies will suffice.

But the Office of the Clerk of the Supreme Court is not merely an administrative arm of the Court. It is the unfailingly courteous and helpful source of information as to all questions of Supreme Court procedure. "Ask the Clerk's Office" is the motto of most attorneys familiar with Supreme Court practice when they are confronted with a procedural problemwhether they are handling a case or writing a book. The observation of Attorney General Garland over fifty years ago is equally true today:

"It is well to note, that it is quite important for lawyers practicing in that court, to see much of the clerk's office and to know its workings. If any motion is to be had or