Of course the court congestion that Chief Justice Warren E. Burger and most of the other justices have complained publicly about is a real problem. Much of the problem arises from the many appeals filed that are totally without merit. To that extent, it can be solved by setting up rotating screening panels of three Court of Appeals judges; one vote on such a panel would send a case to the Supreme Court, which could then grant or deny review as it does today. Relieved of most of its screening function, the Supreme Court could then cut its workload by getting rid of about half of the justices' law clerks.
This sounds like a step backward. Years ago, some justices hired one clerk, and by the 1950s could hire two; the number of clerks allowed seems to have increased to three in 1970 and four in 1978. The key is 1970. The business of the court, apart from the screening function, can be measured fairly well by the number of opinions written.
Between 1948 and 1970, according to figures compiled by the Harvard Law Review, the court wrote an average of 218 opinions annually; after 1970 it averaged 354. There was not a huge change, however, in the number of "opinions of the court": they rose from 107 annually to 145. The real rise was in dissents (from 78 to 134) and in separate concurrences (from 33 to 76).
Most of the increase in opinion-writing comes from opinions the justices don't really have to write. One reason they get written is that there are clerks enough to provide research and, for some justices, first drafts. The change from two to three clerks seems to have been a turning point. A judge with two clerks has two assistants; a judge with three clerks has office politics. As in any office, theoretically equal personnel vying for the boss's attention will play games: two against one, favorite law clerk, and so forth.
Clerks have every incentive to bring to the justice lengthy drafts and suggestions for separate concurrences or dissents. Of course, all the justices in this period make their own decisions. But it is possible that the increased ability to write separate opinions which the additional law clerks give them has contributed to the proliferation of opinions that almost every student of the court laments. (It's not the only cause, however; Justice John Paul Stevens, with only two clerks, writes as many separate opinions as any justice.)
Law clerks are by background perfectly suited to splitting hairs and raising cavils. They come, almost invariably, directly from the most prestigious law schools, where they have spent most of their time writing and reading law review articles. Most educated Americans are not familiar with this genre. The ideal law review article--typically written by a professor seeking tenure--is written in stately, architectonic prose; anything interesting or amusing is removed by the editors and placed in footnotes. The emphasis is on argumentation and logic; the tone is usually a lament, that once again judges or legislators are straying from strict logic and doing something sloppy.
Though most Americans never see a law review, most Supreme Court justices (some of whom were law review editors and law clerks themselves) read them carefully and may consider them their real constituency. Chief Justice Burger would have liked more favorable treatment in "The Brethren," but what he'd like better, I think, are favorable notices in the Harvard Law Review and the Yale Law Journal.
Supreme Court opinions in recent years read much more like law review articles than do opinions from the golden days of Holmes and Taft, Brandeis and Hughes. Recent opinions are lengthy, heavily footnoted, with separate concurrences agreeing with Parts I, II(a), and III, and disagreeing with Part II(b), and dissents disagreeing with all but Part III. Is it any wonder that people have a hard time understanding what they mean, or that further litigation arises?
The law reviews are good at argumentation and raising problems; they don't have much wisdom or ability to settle questions. From history we know that earlier Supreme Courts, such as that led by Chief Justice William Howard Taft or the Warren Court when considering the school desegregation cases, valued consensus and certainty: justices worked together to craft opinions that could settle issues. The Supreme Court, after all, is an organ of government, not a debating society.
Now the justices write individually more and more often. In the meantime, they complain about their workload, which is indeed heavy. They can use other federal judges to help them screen the increasing number of cases filed, but if they do they will still have to face the problem caused by the proliferation of opinions. Perhaps this time their answer will be fewer, not more law clerks.