THE DEMAND for some adjustment of the Supreme Court's workload reached a crescendo in 1982, with six justices making public statements on what they perceived to be a crisis in the courts. It is easy to see why the high court's workload has increased if one thinks of the federal judicial system as a pyramid. At the base of the structure are the district courts, hearing an increasing number of cases, as are the appellate courts at the middle level. In each of these layers, however, more judges can be added to handle the caseload; the burdens can be divided among a greater number of jurists. As the cases move to the top, however, the Supreme Court remains a tribunal of nine jurists who must sit as a single panel to decide the nation's most important legal questions. Creating new positions on the court won't help, for each justice must participate in deciding every case.
In the early '70s, Chief Justice Burger appointed a seven-member panel of distinguished legal authorities --the Freund Commission--to study the workload problem. In 1973, Congress created the Hruska Commission, charged with a similar responsibility. With some variations, both study groups came up with the same proposal: create a National Court of Appeals between the circuit courts and the Supreme Court to take over some of the Supreme Court's work. The proposal had been controversial from the beginning, with some scholars objecting to an additional bureaucratic layer in the judicial pyramid and others fearing diminution of the Supreme Court's ultimate authority.
During the 97th Congress, a bill proposing a less sweeping and less controversial reform was introduced by Rep. Robert Kastenmeier, chairman of the House subcommittee on courts. It was cosponsored by Rep. Peter Rodino, chairman of the parent House Judiciary Committee.
The Kastenmeier bill would establish a temporary court called the Intercircuit Tribunal of the U.S. Court of Appeals. It would consist of between 14 and 22 circuit judges who are in regular active service or who are senior judges. They would sit in panels of seven to hear cases referred to them by the Supreme Court. No judge could sit on a panel to hear a case from his own judicial circuit. The proposal is attractive, since it allows the Supreme Court to retain complete control of its own docket while providing a mechanism for cases to be decided that would otherwise be rejected because of more pressing demands on the justices' time. Using sitting circuit judges for this temporary duty eliminates the need to create a whole new bureaucracy and additional judgeships. And the Supreme Court would retain the right to hear an appeal from a tribunal decision if at least four justices thought it was necessary.
The tribunal would be created for an experimental five-year period and, in consultation with the administrative office of the U.S. Courts, would submit a comprehensive report on its activities to Congress. Both judges and legislators would then have an opportunity to evaluate this approach and decide whether it provides a permanent and efficient way of reducing the Supreme Court's workload. The proposal deserves careful consideration by this Congress. The growing burden on the high court cannot be ignored.