REDEFINING THE SUPREME COURT'S ROLE A Theory of Managing the Federal Judicial Process By Samuel Estreicher and John Sexton Yale University Press. 201 pp. $20
FIFTY YEARS AGO, President Roosevelt made a big and controversial push to expand the size of the Supreme Court. He argued -- disingenuously -- that the elderly justices of that day were overworked. Chief Justice Hughes nailed the argument with a measured but devastating letter.
That seemed to settle the issue until Warren E. Burger, some 32 years later, took the court's helm and got the same bee in his periwig. The most managerially-inclined chief justice since Taft, Burger revived the very complaint Hughes had scorned -- that the Court's docket has become so complex and crowded that the justices can't keep up with it. Accordingly, Burger's reign was punctuated by proposals to install some sort of "intermediate" tribunal to share the Supreme Court's workload.
Fortunately, nothing has come of this nostrum so far; for even assuming a real overwork problem, the intermediate tribunal idea presents an insoluble dilemma. A court of final authority (say, one designed to settle persistent conflicts among the U.S. circuit courts) would encroach on the constitutional directive that there be "one supreme court." A court of lesser authority, requiring the constant control and review of the Supreme Court, would offer little significant relief and thus defeat its own purpose.
The authors of this cheeky little book are law professors and former Supreme Court clerks. And though one of them clerked for Burger, both are skeptical of the former chief justice's solution.
Nonetheless, they share his premise that the Court is overworked. Estreicher and Sexton believe the answer lies in a drastic change in the Court's conception of its role and work habits -- a more "managerial" approach. To this end, they have made an exhaustive study of how the Court handled its work in 1982, of which this volume is a digest.
The Court, they say, must stop thinking of itself, even vestigially, as everyman's court of last resort. This they believe to be an outdated and romantic notion, the remnant of the "bleeding plaintiff model" which the Court inherits from its 19th-century past. In those days it did frequently function as a court of error, as a refuge for individuals who felt wronged at law. Now such a conception of its role has become an unmanageable luxury.
What to do? Like all who have studied the workload problem, the authors agree that Congress should relieve the Court of its "mandatory" appeals jurisdiction, which in practice has pretty much ceased to be mandatory anyway. All jurisdiction would be discretionary, as upwards of 80 percent of it is and largely has been since 1925. They further propose that the Court greatly tighten its criteria for granting review and withdraw from the popular expectation that it will sometimes intervene to right private wrongs. It should limit itself to the task of managing and standardizing the federal law. This would require greater toleration of variety and conflict in lower courts; far more "percolation," as such judicial jostling is called, would be encouraged save in the most obviously inappropriate situations.
The authors also propose internal changes of a micro-managerial sort. They note that the justices are usually more selective at their September conference, when, returning from the summer recess, they take up a large accumulation of petitions and appeals. It might follow, they suggest, that if the Court spaced out its conferences it would be more discriminating in what it agrees to hear. They offer even more adventurous and unorthodox suggestions -- for instance, that the Court experiment, when it is fitting, with two-part decisions in the manner of a regulatory commission -- this, in the hope of making its definitive rulings more so.
THIS IS clearly an earnest book, and it may be helpful to court reformers determined to conquer its sometimes forbidding legalese. But it breathes the uncomprehending brashness of youth. The authors, that is, take it as but a misplaced romanticism that blinds the justices to the virtues of managerial efficiency.
In fact, however, it is the instinct of survival. The acceptance of a visibly "managerial" procedure would require an explicit standardization -- a cut-and-driedness -- that would endanger the Court's institutional prestige.
This "demystification" they regard as necessary, if not inevitable. But the instinct that clings to the Court's flexibility, its freedom to do the whimsical thing, is basic and it is sound. Having grown up in an age when quantification and "policy science," so called, all but engulf political theory and history (and lap even at the portals of jurisprudence), Estreicher and Sexton are perhaps not conditioned to grasp the gossamer of subjectivity on which venerable institutions depend.
But the truth is that the Supreme Court's peculiar authority probably can never rest on some proclaimed standard of managerial efficiency. The authors protest their sensitivity to the dangers of "bureaucratization," but their proposals belie the protestation. On the day that the Supreme Court organizes itself as another beehive, with rules, clerks and standard operating procedures, it will jeopardize just those qualities that set it apart in the public imagination. The American public will venerate jurists in robes and tolerate their occasionally anti-democratic behavior with a smile. Its impatience with more bureaucracies is notorious.
At the end of the day, moreover, the overwork argument is at best problematical. Justices do work very hard. But the standards of youth-in-age common at the Court suggest that it is the closest thing we have, in this vale of tears, to the fountain of youth. If this is overwork, others of us would like a taste of it.
Now that Warren E. Burger has departed, we shall perhaps hear less of the problem. But where it is genuine, the justices, who made it, can unmake it without adopting the gray look and over-standardized manners of a Bureau of Federal Law. :: Edwin M. Yoder is a columnist with The Washington Post Writers Group.