Scalia Urges Forming of Special Courts to Ease Caseload

Saying that the federal courts are being swamped by “more and more cases of less and less importance,” Supreme Court Justice Antonin Scalia on Sunday proposed a major restructuring of the federal judiciary that would move the nation toward a system of specialized national courts.

In a speech to the American Bar Assn., Scalia portrayed a once-elite federal court system that is being crushed under the weight of an enormous caseload.

When he left law school in 1960, Scalia told the assembled lawyers and judges, there was real meaning to the phrase: “Don’t make a federal case out of it.”

Then “routine disputes” involving employment, the police, real estate or banking were handled in state courts. “The federal courts were the forums for the big cases,” he said, and the “best and brightest” of young lawyers aspired to practice in federal court.

Cases Increase

Since then, however, the number of cases filed in federal district courts has risen fivefold, and the number of cases filed in the federal appeals courts has soared from 3,500 in 1960 to 39,000 last year, he said.

Today, the federal courts are “fast becoming a vast judicial bureaucracy” where judges are beset by a multitude of appeals of “overwhelming triviality,” he declared.

“This is not the system you and I learned to love,” said Scalia, a former federal appeals court judge. “I wanted to be a judge, not a case processor.”

He blamed the explosion of federal cases on Congress and the courts themselves, and said the “nationalization of the judiciary” shows no sign of being reversed.

As a remedy for the overload, Scalia said, disputes involving Social Security, employment and labor, banking and a number of other areas could go directly into special national courts. This would leave the federal courts free to handle fewer but more significant disputes, he said.

Three Layers

Under the current system in the United States, the federal judiciary has three layers: district courts, regional appeals courts, of which there are 13, and the Supreme Court. All cases that pose a federal question, with the exception of tax matters, go directly to federal courts and can be appealed automatically. Only the Supreme Court can pick and choose which cases it will agree to decide. In a typical year the high court gets nearly 6,000 appeals but hears arguments and issues opinions in only about 160 cases.

Scalia’s proposal on reshaping the federal judiciary upstaged Chief Justice William H. Rehnquist’s first speech to the ABA since his elevation in September. Rather than outline his views on the state of the judiciary, Rehnquist picked a non-controversial topic: the bicentennial of the U.S. Constitution.

Rehnquist said that the Constitution should be celebrated for giving the nation a stable and democratic government but that “it will not do to regard the Constitution as the ‘arc of the covenant,’ immutable and unchallengeable.” The first Constitution, signed in 1787, would not suit us today, he said, because among other things it allowed slavery.

“Two hundred years from now our present-day Constitution may well seem to our descendants to have many shortcomings which were not apparent to us,” he said.