SEVEN members of the Supreme Court are intent on doing something about their workload, and a few of them gently confess what some observers have sensed for years: the growing burdens have hurt the quality of the judicial process, as measured by such things as the careful selection of cases to hear on appeal and the clarity, if not wisdom, of opinions.
To contend with the docket boom, the justices have quietly developed a variety of bureaucratic techniques, some of which may seem suspicious to non-lawyers--and with good reason, because they invite abuse. For example, the justices delegate work to squads of young clerks fresh from law school; or they refuse to consider an appeal if it is a mere isolated instance of error by the courts below, rather than a pressing doctrinal conflict with big intellectual or economic stakes.
There are subtler ways for the high court to cope, too. For example, opinions of the court in recent years have sharply limited the availability of federal appeals for state prisoners complaining of search- and-seizure violations. The fairly obvious goal, though couched in terms of deference to state criminal courts, was a reduction in workload for federal courts. But the cost has been poorer policing of the way state courts interpret a key provision of the Bill of Rights. The desire to reduce the flow of cases has also been part of the Supreme Court's motivation in defining federal rights narrowly in certain areas. But trimming the substantive scope of legal rights in respect to prison conditions or police brutality is a high price to pay for trimming the docket.
Some people suppose it is enough to inveigh against lawyers or urge Supreme Court justices to work harder. Actually, the heart of the problem is that America is too litigious and, at least in some areas, devoted to elaborate judicial procedures rather than to other means of resolving disputes fairly. Many more problems could be handled through mediation, arbitration or agency adjudication -- and those approaches, in carefully selected areas, are certainly better than wholesale curtailment of judicial remedies in criminal appeals and civil rights cases, as some have urged.
Chief Justice Warren E. Burger has called for a major study of the federal court system, including attention to the proper role of courts. This is helpful. The justices should sit down and formulate their views on these problems, collectively if possible. Their judgment should be the centerpiece of a thorough diagnosis and prescription, before justice is strangled by the dockets.