In a highly unusual public airing of the problems of the Supreme Court, Justice John Paul Stevens has called for what amounts to a divestiture of major chunks of the court's power.
Stevens' sharp attack on the quality of the Supreme Court's work stunned lawyers and judges who heard his speech before the American Judicature Society Friday night, and today court analysts were calling his remarks one of the most important self-criticisms by a Supreme Court justice in recent years.
It is exceedingly rare for members of the high court, whose speeches are generally notoriously noncontroversial, to use a public forum to air internal problems and self-doubts.
But Stevens told his audience flatly that justices are making judgments too quickly in many cases and prematurely in others. He said the court was engaged in "unnecessary law-making" and was relegating important elements of its work to the status of "second class" assignments to be handled by "anonymous" clerks and administrators.
In its zeal to correct every judicial error and resolve every conflict, he said, the court has taken on a crushing burden of cases.
Stevens recommended that the court give up its closely guarded power to pick and choose its caseload through the granting and denial of certiorari and give that authority to a wholly new court.
He also said that a whole class of Supreme Court cases--disputes over legislative interpretation--should be turned back to Congress for resolution, perhaps by a standing committee, rather than continue to be judged by the federal judiciary.
Stevens said that the court had tried last year to hold a meeting to discuss solutions to the problem. "As the term developed, however, and we became more and more deeply involved in the merit of a series of difficult cases, our initial recognition of the overriding importance of evaluating our own workload problems . . . gradually dissipated and no such conference was ever held," he said. "We were too busy to decide whether there was anything we could do about the problem of being too busy."
Wade McCree, former U.S. solicitor general and a one-time appellate judge, called it "the most extraordinary speech I've ever heard by a Supreme Court justice." Various justices, including Stevens, have written some of these criticisms in opinions and outsiders often cite them, but McCree, now a University of Michigan law professor, said he had never heard such candor from a member of the court in public. One of the leading academic analysts of the court, Yale Kamisar, also of the University of Michigan Law School, said he was astounded by the speech. "I came here to relax, but found myself writing it all down. It was very unusual." Kamisar added, however, that he disagreed with the idea of setting up a new court because he considers caseload screening one of the court's most significant functions.
Chief Judge Donald P. Lay of the 8th U.S. Circuit Court of Appeals expressed relief that a member of the court was finally beginning to recognize what lower federal court judges have perceived for some time.
"I've got 100 opinions on my desk issued by the court in the last three weeks of its term," Lay said. "I recently told Justice Harry A. Blackmun that I hoped I would have time to read them all and if I didn't that I hoped there was nothing I needed to know right away."
The court receives roughly 4,000 petitions for full review each term, a number that has increased dramatically over the past decade. But the court only chooses 150 to 200 of those for full briefing, oral arguments and opinions. Stevens said this has meant the justices have been treating the screening process as "second class work."
"I have found it necessary to delegate a great deal of responsibility in the review of certiorari petitions to my law clerks," he said. "They examine them all and select a small minority that they believe I should read myself. As a result, I do not even look at the papers in over 80 percent of the cases that are filed."
Stevens also said the court agrees to review many more cases than it can handle, partly because it feels the need to correct lower-court errors or because it is unwilling to allow lower-court judges to exercise authority.
He said that the court should begin trusting people other than judges to resolve legal disputes and misunderstandings.
He suggested that Congress establish a standing committee "to identify conflicts that need resolution and to draft bills to resolve them one way or the other," as an alternative to resolution of these conflicts by the court. "It would seem to make good sense to assign Congress the task of performing the necessary corrective lawmaking."