ATTORNEYS WHO reach the pinnacle of the profession -- appointment to the Supreme Court -- are not the kind of people to whom hard work is unknown. One does not get to the high court by complaining about long hours and heavy burdens. That's why special attention should be paid to an extraordinary series of speeches that individual justices have made over the last five weeks. Six members of the court, on separate occasions, have voiced concern, not only about the numbers of cases and motions that now come before the court, but also about the quality of justice rendered by a court that is swamped. The chief justice is not one of the six who has spoken recently, but he has, for years, been trying to call attention to these same problems.
The increased workload is due to a number of factors, among them the rapidly growing population of American lawyers. In the last 10 years, the number of licensed attorneys has gone from 320,000 to over 617,000. Inevitably, more lawyers produce more litigation. Congress has created more judgeships in the lower federal courts to handle the burden. But even if it were politically possible to increase the number of justices of the Supreme Court, this would not solve the high court's problem, because the caseload is not divided among the justices. The full bench sits on each case. A majority of the justices believes that the solution lies in the other direction: reduce the number of cases that come before the court.
It is unrealistic to expect litigants or members of the bar voluntarily to refrain from bringing cases to the court. This is especially true in criminal cases, where an appellant has every incentive, and often free legal help, to pursue his appeal all the way to the top. Lawyers who discourage such appeals run the risk of being blamed, in later filings, for providing inadequate representation. Making a complete record of diligent appeals -- even if those appeals have little merit -- is a form of self-protection.
Both Congress and the executive branch have tried to grapple with the problem of the Supreme Court's workload by proposing a variety of changes. These range from creating new courts to decide some final appeals to placing restrictions on habeas corpus petitions. So far, no one has come up with a comprehensive package that has wide support. Perhaps the people best able to do that are the nine justices themselves. If the logjam is as critical as six justices have told us this summer, the efficient way to deal with it is to set aside a few weeks and resolve the matter as they would a case. Produce a document for Congress to consider, even if there are sightly differing concurring opinions and vigorous dissents. Six isolated speeches have caught the attention of the public, but a comprehensive statement asking for specific relief would get action. Though there is little of either to spare, such a task would be worth the expenditure of time and energy required of the justices. It should be the first order of business when the court convenes on the first Monday in October.