So far, I've tried to establish that, as an historical matter, it was universally understood that the Supreme Court's appellate jurisdiction flowed through the writ of error or appeal. Certiorari, whether common law or statutory, didn't change that, since certiorari simply brought the case to the Court as if on error or appeal. Either way, the Court had to issue a decision that was consistent with the entire record, not just based on review of preselected questions of the justices' choosing.
As we saw yesterday, when Taft and the other justices lobbied Congress for more extensive certiorari powers in 1925, they promised Congress that when the Court granted certiorari, the justices would review "the whole case and every question presented in it." The bill's text, which was in truth drafted by the justices themselves, maintained the explicit link between certiorari and the writ of error. Everyone was in accord. And then came Olmstead.
Olmstead is mostly remembered for its constitutional holding regarding wiretapping. The facts of the case involve a somewhat large conspiracy to traffic in illicit alcohol in Washington State during Prohibition. Without a warrant, federal officials tapped the phones of several key players in the scheme in violation of a state statute. The transcripts from the taps were read to the jury during trial, and the defense objected repeatedly, thus preserving the evidentiary ruling for an eventual appeal on error. The conspirators were convicted and lost their appeal at the Ninth Circuit. The subsequent certiorari petitions included not only the now famous constitutional claims, but they also raised the evidentiary issue. Specifically, the defense argued it was improper to admit evidence obtained in violation of state law.
