Clearing the Heft of Cases: Justice Scalia Tries a Plan

Our system of simple justice is giving way to a vast judicial bureaucracy. Federal caseloads quadrupled in the last 25 years and the number of judges more than doubled. Judges, in turn, acquired more law clerks and administrative personnel. As a result, the size of the judiciary has grown by more than 110%. And still judges face real caseload and workload problems.

According to Justice Antonin Scalia, now in his first term on the U.S. Supreme Court, judges are not simply overworked, but burdened by too many “uninteresting” and “trivial” cases. Unless the judiciary is radically restructured, he warns, “the best and the brightest” may no longer be willing to serve on the bench.

Alas, Scalia’s proposed solution provides no answer to the problems confronting federal courts. This is because he advocates creating a separate system of special courts to handle routine and “uninteresting cases”--involving, for example, Social Security disability claims and appeals from denial of requests under the Freedom of Information Act. Such courts would only add to the growing judicial bureaucracy and have a negligible impact on the work of existing courts.

Traditional responses are not entirely satisfactory, as Scalia rightly pointed out in a recent speech before the American Bar Assn. More judges and law clerks simply add to the burgeoning bureaucracy. Improved caseload management, championed by retired Chief Justice Warren E. Burger, is not a solution either. As Scalia tersely puts it, “I wanted to be a judge, not a case processor.”

Scalia also rejects Burger’s notion that the workload of the Supreme Court is the most pressing problem--although that issue has dominated debate over court reform in recent years. The debate began in 1972, when a committee appointed by Burger and chaired by Harvard law Prof. Paul A. Freund recommended a national court of appeals. The court would screen the approximately 4,500 cases that annually go to the U.S. Supreme Court and refer only about 400 on to the court, while denying the rest. The Freund report was widely attacked, notably by retired Chief Justice Earl Warren, who contended there was no workload problem.

A Commission on Revision of the Federal Court Appellate System, headed by Sen. Roman L. Hruska (R-Neb.), released another report in 1975. It also endorsed a national court of appeals but, instead of screening cases, this one would hear those referred by the Supreme Court. It too was defeated, for the court’s workload might actually have increased; cases would still have to be screened and the justices have to decide which to grant, deny or transfer to the new court.

Shortly before stepping down, Burger again lobbied Congress to establish an intermediate tribunal, staffed by judges drawn from various courts of appeal. This tribunal would decide cases involving circuit conflicts--cases where two or more courts of appeals ruled differently on the same issue. Burger managed to get four other justices to endorse the idea but found little support elsewhere.

Since Burger has left the court, the justices have cooled to the idea and it remains unlikely to win support either from Congress or the Administration. Appellate judges--particularly those named by Reagan--strongly opposed Burger’s vision and, Scalia says, “it would only exacerbate the problem of image,” for they would be reduced from second- to third-class judges. Scalia agrees with scholars who have long said that the first step toward solving the court’s problems is self-restraint. Unlike any other court, the Supreme Court has the power to decide what to decide; justices simply grant too many cases review.

Scalia now returns debate over court reform back to the problems of the lower federal courts. Yet his proposal will meet even stiffer opposition than Burger’s.

The bench and the bar have long opposed specialized courts--for good reason. Our tradition of “old-fashioned generalist” judges and arrangement of courts on a “geographical” rather than a “topical” basis has generally served us well.

To be sure, we have some courts of the kind that Scalia suggests. These include the Court of Military Appeals, the Emergency Court of Appeals, which takes cases involving energy on a national basis, and the five-year-old Court of Appeals for the Federal Circuit, dealing primarily with tax, patent and international trade cases.

And Scalia is not the first to advance the idea of establishing more specialized courts. Others, through the years, have made similar proposals for courts to deal solely with all commercial cases, appeals from administrative agencies or cases from state supreme courts.

All such proposals have encountered two basic objections. First, too much power over law in these specific areas would be concentrated in the hands of too few judges. This remains troubling because one President might name a majority or more of such a court and thereby have a profound impact on the direction of its decisions. Second, both liberals and conservatives worry that such courts might be “captured” by special-interest lawyers who regularly argue cases before them, much as students of the political process have shown that regulatory agencies may be captured by the very interests they are supposed to regulate.

Even more opposition may be expected to Scalia’s proposal because his idea appears inherently contradictory and self-defeating. At bottom, it means giving routine and trivial cases to special courts.

Those now on the bench could then concentrate on the “major cases,” and thus find more prestige in serving justice. But who would want to serve on new courts devoted to deciding admittedly “trivial” cases? They are not likely to attract “first-rate legal minds.” And there remains no guarantee that only “the cream of the profession” will then be attracted to the courts we now have.

In addition to these objections, Scalia’s proposal entails a basic trade-off between reducing current caseloads and further increasing the complexity and size of the judicial bureaucracy. Depending on the categories of cases diverted and the number of new courts, the situation might get worse. For example, sending disputes involving Social Security to another set of courts would reduce caseloads of district judges less than 10% but add to the judicial bureaucracy.

Nor will the Democrat-controlled Congress look favorably on his proposal. The Senate is in no mood to give Reagan more opportunities to pack the bench. In the last six years, he has appointed more judges than Franklin D. Roosevelt did in twice as many years. By the time Reagan leaves the Oval Office he will have named more than half of the entire bench. Nor is Reagan’s record in appointing the likes of Judge Daniel A. Manion bound to inspire confidence in the quality of his future nominees.

The courts of appeal for the District of Columbia and Federal Circuit have become dumping grounds for those who could not get confirmed elsewhere--and over objections that they lacked the necessary expertise for these rather specialized courts. Ultimately, the proposal will only increase antagonism about giving Reagan judges more time to concentrate on “major cases”--like abortion and affirmative action. That’s basically the same objection conservatives once raised against creating more judgeships and perpetuating what they decried as our “government by the judiciary.” The problem remains: Scalia’s reforms would hasten, rather than foreshorten, the push toward more bureaucratic justice.