The Supreme Court is in deep trouble. Simple statistics tell a part of the story. Thirty years ago the Court had 1,463 cases on its docket; it handed down 65 signed opinions. Last year the court had 5,311 cases on its docket; there were 141 signed opinions. The statistics do not tell the whole story. As the volume of work has gone up, the quality of the court's output has gone down. Struggling against a flood of paper work, the court's nine members simply do not have time for thoughtful reflection and careful writing.

In his speech of Feb. 6 to the American Bar Association, Chief Justice Warren Burger called upon Congress for relief. He proposed that for a period of five years, two judges from each of the 13 federal circuit courts be named to a special pool. From this pool, seven or nine judges a year would be drawn. This panel would hear and decide all intercircuit conflicts. The Supreme Court would reserve a right to review these decisions, but Burger made it implicit that such a final review would rarely be granted.

Just a couple of weeks ago, on Feb. 23, reporters saw a striking example of how the Burger plan might work in practice. Seven signed opinions were handed down that day. Four involved the kind of intercircuit conflicts Burger would give to the new appellate panel. One had to do with a dispute involving rival teachers' unions in Perry Township, Ind. A union known as the PEA won exclusive bargaining rights. As part of its victory, the PEA also won exclusive rights to use the teachers' mailboxes. The other union, known as the PLEA, insisted on access to the mailboxes. This titanic issue went to court, and the PEA won. Trivial as it all sounds, the litigation raised First Amendment questions that had been decided differently by the several federal circuits.

A second case dealt with a kidnapping and rape. At the defendant's trial, the judge instructed the jury that "A person's intention may be inferred from his conduct, and every person is conclusively presumed to intend the natural and necessary consequences of his act." Three years later, the Supreme Court held that such an instruction violates the 14th Amendment, but left open the question of whether the giving of this instruction may be "harmless error." Since then the circuits have divided on the issue. The Supreme Court ruled, 5-4, that the error was not harmless.

A third opinion involved the circumstances under which an applicant may be denied a license to deal in guns. Some circuits had ruled one way, some another. The fourth dealt with a complex situation involving litigation under the Federal Employees' Compensation Act. Again, the circuits had divided.

The proposed new panel would relieve the high court of 35 to 50 such cases a year, and thus might achieve a reduction of more than 25 percent in the laborious work of preparing full-blown, signed opinions. No one can promise that such relief would restore the great, magisterial tone we expect from the Supreme Court. A great, magisterial tone is a product of personality, not jurisdiction. Such justices as Harlan, Fortas, Jackson, Frankfurter and Black could speak eloquently for the ages; today's justices speak in dull and desiccated prose for a Wednesday morning. But we have to try something, and the Burger plan sounds good to me.

Copyright (c) 1983, Universal Press Syndicate