Chief Justice Warren E. Burger, citing an "avalanche of cases" overwhelming the Supreme Court, today renewed his call on Congress for a national appeals court to relieve the high court of more than a fourth of its cases.
The new panel's primary task would be to resolve conflicting decisions among the federal appeals courts. The panel's decisions still could be reviewed by the Supreme Court.
"Years ago we passed any sensible limit on how much the Supreme Court should be asked to do," Burger said in his annual State of the Judiciary speech to the American Bar Association convention here.
Burger said the idea of creating a new court had been discussed for more than a dozen years. "The real question now is whether we have not debated and discussed it long enough, and whether or not the time has come to act."
Burger, who has spoken often to the ABA about the high court's caseload problem, said it was his "duty to press the subject until either a better solution is put forward or Congress acts."
He said he also wanted to respond to "considerable misinformation" about the proposal.
Despite backing by a majority of the court itself and bipartisan support in Congress, legislation to create a new intermediate court never has advanced beyond approval at the congressional subcommittee level.
Burger has said privately that he believes part of the problem is that Congress thinks the issue is not important enough to warrant much attention.
According to a source close to Burger who declined to be identified, Burger is amused to find that, after all the years of debate, he is approached by usually knowledgeable senators who ask, "What is this about some special court you want?"
What he wants, Burger told the ABA, is a panel composed of one judge from each of the 13 federal courts of appeals and selected by the Supreme Court. Nine of the 13 would sit as a panel with four judges "in reserve."
Whenever two or more appeals courts disagreed on an issue, the Supreme Court would have the option of referring those cases to the new court to resolve the issue.
Burger said the new court also could handle cases involving interpretations of federal law, but he said "settling conflicts would be the primary purpose."
Burger said the number of cases coming to the court has soared from 1,463 when former Chief Justice Earl Warren presided in 1953, to 5,100 last year.
The number of opinions has more than doubled in 30 years to more than 150 in recent terms -- about 50 more than most observers, including Burger, think the court can handle.
Proponents of an intermediate court say the justices often review cases not because the issue is critical but to make the law uniform by resolving conflicts.
Opponents argue that the justices would review many of the same cases even after the new court ruled.
Burger said yesterday he would "risk a prediction that few cases referred to the new panel would be granted further review by the Supreme Court."
Other critics of the proposal, including Justice John Paul Stevens, have said that the court's problem is that the justices, who have considerable discretion over which appeals to take, simply take too many cases each year.
But Burger said that "the notion that the court's problem is a self-inflicted wound simply will not wash." He cited a study showing that cases in federal district and appeals courts have increased dramatically in the last 20 years. Those courts all have more judges, Burger said, while there are still only nine Supreme Court justices.
Burger is known to believe that many critics who say the court reviews too many cases or takes the wrong cases for review are simply objecting to the substance of the court's rulings.
"It's all a question of whose ox is being gored," said the source close to Burger.