I. Leaving the Nineteenth Century
. . .
I. Often Overworked
Despite poor pay, justices often have been among the hardest-working lawyers in the state. In 1917, Lounsberry relied on an unnamed "citizen of Bismarck who investigated the matter" to depict the extraordinary efforts of the Court at that time: "Worked like horses in harvest! They work unremittingly to keep up the calendar and avoid the delay which is incident to appellate practice!"(118)
The Supreme Court had written and published 221 opinions in 1915, and then 243 in 1919.(119) Still, those demanding levels of effort went unmatched for quite awhile. After 1919, the work of the Court tapered off and became less burdensome for over half a century. As one example, the 1947 Court wrote and published only thirty-eight opinions.(120)
The justices during part of the mid-century time, according to Supreme Court lore, also displayed a different mien than do members of the modern Court.
They filed in and took their seats. The Chief Justice nodded to the appellant's attorney who made his argument without a comment or question from the bench. When that attorney sat down, the Chief Justice nodded to the appellee's attorney, who also argued without interruption and sat down. After a nod and an uninterrupted rebuttal, the Chief Justice announced the case would be taken under advisement, the only words spoken from the bench before they filed out.
Reportedly, too, one justice did not read the briefs before oral argument, allegedly to avoid prejudging the case.(121)
No doubt there have been some active and vigorous justices among the members of nearly every Court. But it is evident that today's justices typically have better habits of preparing thoroughly, probing extensively at oral argument, and producing their opinions with more dispatch than during some past times.
During the last two decades, the Court again has had a heavier workload to decide the increasing number of appeals and to supervise a judicial system with burgeoning caseloads.(122) Since 1981, the Court has produced and published more than 200 opinions every year, peaking at 273 written opinions in 1994.(123)
Justices continue to be often overworked and usually underpaid.
118. Lounsberry, supra note 1, at 446.
119. Search of West's North Dakota Law on Disk (database containing only North Dakota Supreme Court decisions) (search for records containing 1915 in DATE field).
120. Search of West's North Dakota Law on Disk (database containing only North Dakota Supreme Court decisions) (search for records containing 1919 in DATE field); Search of West's North Dakota Law on Disk (database containing only North Dakota Supreme Court decisions) (search for records containing 1947 in DATE field).
121. Compare today's standards. "Competent representation [by a lawyer] requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." North Dakota Rules of Professional Conduct Rule 1.1 (2000) (emphasis added). A justice or judge, who is but a lawyer placed in a position of public responsibility and power, has an equivalent obligation of competence and diligence. See North Dakota Code of Judicial Conduct Canon 3 (1980) ("A judge shall perform the duties of judicial office . . . diligently.").
122. Besides hearing appeals and writing opinions, the current Court holds a weekly conference to deal with and determine numerous other matters, including procedural motions in pending appeals, petitions for writs, petitions to supervise trial courts, recommendations for discipline of attorneys and judges, petitions and recommendations for procedural changes, personnel and policy matters for the judicial system, and similarly related and subsidiary work. Extensive reading, research, and review is often required to prepare for this weekly conference.
Justice Robert Vogel wrote his impressions of the responsibilities of the position within a year after joining the Court in 1973:
The work load is heavy-my share of opinions to write, the opinions of four other judges to read and comment on or dissent from, oral arguments to listen to, and administrative duties to perform. Some of these take considerably more time and work than I, or most other lawyers, thought possible. Oral arguments, for example, take from a third to half of our days. Administrative duties take perhaps ¼ of the remaining time.
* * *
Work on committees takes time. . . . And there are meetings and conferences to attend. So the time left for research and writing is probably less that 1/3 of the time we have to spend.
But still the pressure can't compare with the pressure cooker of private practice. I have the almost sensuous luxury of being able to take time to thoroughly research a question if I think I need to, instead of dashing off a brief on the basis of first-draft-plus-correction-of- typos, as I sometimes had to do in practice.
Only a busy trial or appellate lawyer can know how much it means to have time to double your research time in order to improve the product by 10%. . . .
Justice Vogel, FROM THE FRYING PAN TO THE WARMING OVEN, (Or, Becoming an Appellate Judge), a memo to himself, dated 3-18-74, from a copy sent with a letter to Herbert L. Meschke, dated October 7, 2000.
123. Search of West's North Dakota Law on Disk (database containing only North Dakota Supreme Court decisions) (search for records containing 1981 in DATE field and a separate search for each year thereafter).