IN A SPEECH the other day to the American Law Institute, Chief Justice Warren E. Burger talked about how busy the federal courts and the Supreme Court are and pointed how much of their work now - compared with a few years ago - involves what might be called issues of human rights. That is an interesting point, because the shift in the kins of cases courts handle can say a lot about the concerns of the society in which they exist. But the Chief Justice seemed to be doing something more. He seemed to be suggesting that because the federal courts now handle so many human-rights cases, criticism that the Supreme Court has been closing the courthouse doors to some kinds of rights cases is unjustified.
We are among those who have made the criticism. They think the Court has been wrong to curtail the power of other federal judges in hearing claims that state laws are unconstitutional and to tighten the rules on who has "standing" to bring a case into court. We have also joined with those who have suggested that these and other opinions show a lack of sympathy by a majority of the Justices for cases involving civil or constitutional rights. Whether you agree in this criticism or with the Court in what it is doing depends on the priorities you assign to certain principles. The Court's majority, for example, is giving great weight these days to its concept of federalism; thus it is turning over to the state courts a good many cases that in the past would have been decided in federal courts. We think that underlines the low priority the Court is now assigning to the kind of constitutional claims involved in those cases and opens the Court to serious criticism.
Running through the Chief Justice's remarks, although never directly expressed, is the implication that the courthouse doors have been closed in some instances because of the heavy workload of the federal courts. He is absolutely right about the workload, and Congress, after much unfortunate delay, may be about to provide some relief in a bill creating 146 new judgeships. If the crowded conditions of judicial dockets have had something to do with the spree of decisions cutting off access to the courts, we hope that the arrival of these new judges will persuade the Supreme Court to reconsider what it has been doing. If not - and we don't really anticipate that reconsideration - Congress ought to pass legislation opening up some of the doors that the Court has been closing. The idea that the courts are doing the proper thing simply because they handle more human-rights cases now than ever before must yield to the fact that more human-rights cases than ever before are now being turned away before they get across the threshold.