IT'S NOT Chief Justices Burger's fault that his year-end report on the judiciary deals with subjects that are sleeping medicine for all but a tiny handful of lawyers. The trouble is that the chief justice, even after a decade of diligent effort to make the courts better, has to keep talking about the same old, deadly themes because it has taken so long to get anybody to listen.
Consider the question of how many federal judges there should be. Twenty-six months ago, Congress created 152 new judgeships, increasing the size of the federal bench by 30 percent. The chief justice is back this year with a request for 37 more judges and a mechanism to authorize the judiciary, instead of Congress, to create even more jobs when they are needed. His point is that Congress doesn't keep up with the daily or yearly problems of the courts and -- although he wouldn't put it quite this strongly -- only acts to provide more personnel when the system is about to break down.
Similarly, there is the problem of the Supreme Court. Its nine justices were presented with 4,067 cases in the term ending last summer. That's way too many, especially when the law requires that they must decide certain ones of them. The chief justice has been trying to get that mandatory jurisdiction eliminated so that the court will have complete freedom to pick the cases and the issues on which it spends its time. There is no opposition to that proposal, but it's so unexciting Congress simply hasn't gotten around to changing the law.
We don't mean to suggest that Congress has been totally oblivious to the needs of the courts. During the last year, it has passed several significant bills, some of which you no doubt never heard about. There was, for instance, the Dispute Resolution Act. It authorizes federal aid to the states in setting up mediation centers where minor disputes between citizens -- arguments over things like bills and dogs and fences -- can be settled without the costs and complications of regular courts and judges. And there was the creation of the new Court of International Trade, a substantial improvement over its forerunner, the Customs Court.
Such items take time, however, to move through Congress. The division of the Fifth Circuit Court of Appeals into two courts, approved in October, was first proposed by the chief justice 10 years ago. At the same time, he recommended breaking up the Ninth Circuit. Tha proposal is still pending.
Some of the other ideas he has floated during the decade are also gradually perking along. Other judges and lawyers have come to grasp the need to curtail predtrial discovery because of its inordinate expense. A bill is pending in Congress to authorized a study of his belief that federal and state courts are becoming too much alike in the kinds of cases they handle. Some law schools and bar associations have instituted new teaching programs that suggest they now accept his once-controversial appraisal that too many lawyers are not competent to do courtroom work.
By making a tradition of this year-end report, Chief Justice Burger has created a mechanism for reminding Congress and, in this case, a new administration of some things that need to be done. They are, for the most part, unexciting and even unnewsworthy, but they would make the courts work better and make justice more accessible to all.