WHEN HE SPOKE to the American Bar As sociation meeting a week ago about the pressing workload of the Supreme Court, it is unlikely that Chief Justice Burger expected attending lawyers immediately to rally to his cause and push legislation through Congress in a matter of weeks. Lawyers, after all, are a conservative bunch; judges even more so. In spite of the fact that eight members of the Supreme Court have now spoken publicly on the court's growing workload, there has been argument that the chief justice's appeal is "unpersuasive" and that Congress, instead of adopting his proposal, should pass legislation abolishing the mandatory jurisdiction of the court-- letting the justices pick and choose the cases they want to hear--in order to reduce the volume of cases.
Eliminating mandatory jurisdiction is a good idea, and it has wide support on the Hill. But congressional experts such as Sen. Howell Heflin and Rep. Robert Kastenmeier agree with Chief Justice Burger that this step alone will not solve the workload problem. The chief justice frankly admitted in his speech to the ABA that he did not have a foolproof solution to offer. He proposed a serious study by an independent commission and the creation of a temporary Intercircuit Tribunal to handle some of the less important cases. This judicial body would be composed of judges already sitting on federal courts of appeals, so no new and expensive bureaucracy would be created. For a five-year period, they would hear cases involving conflicting decisions in the federal circuits, about one-third of the cases now argued before the Supreme Court. No one is really certain the scheme would work. That's why the chief justice and congressional sponsors of court relief legislation have all proposed that the tribunal be created on an experimental basis.
The high court has a problem. The simple fact that so many justices, persons not used to complaining in public about court matters, have asked for help from the bar and Congress makes it plain. The Intercircuit Tribunal is a practical and efficient proposal, far less radical than changes suggested by the Freund and Hruska commissions in the 1970s. Why not give it a try?