US chief justice outlines ideas to ease high court's caseload

By , Legal correspondent of The Christian Science Monitor

The nation's top jurist - Warren E. Burger, Chief Justice of the United States - is declaring a judicial ''disaster area:'' It stems from the case overload in the US Supreme Court.

He proposes a two-pronged attack to slow the flood of litigation that now flows to the nation's highest tribunal:

* Immediate creation by Congress of a special, temporary US Court of Appeals for the Federal Circuit to relieve the Supreme Court by deciding certain statutory cases and resolving conflicts between lower federal courts.

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* The formation of a Tripartite Commission, composed of members appointed by all three branches of government, to conduct a broad study of court structure and offer recommendations for reform.

In remarks prepared for delivery late Sunday before the American Bar Association's midwinter meeting here, the chief justice pointed out that the court's caseload had increased 270 percent in the last three decades. The Burger court handles more than 5,300 cases a year and issues 140 signed opinions (double what the high court did 30 years ago) annually.

Mr. Burger blames Congress, at least in part, for this litigation explosion. He explains that lawmakers have enacted ''more than 100 statutes creating new claims, entitlements, and causes of action.'' He also says there are many complex cases today, particularly in specialized areas such as taxation and oil and gas claims, where there are few precedents to guide the court.

The chief justice's recommendation for a special temporary appeals panel stops just short of proposals by two prestigious legal study groups - the Freund Committee and the Hruska Commission - for a permanent intermediate federal court of appeals that would handle cases designated to it by the US Supreme Court.

Burger favors this idea, but says he would like to see it tested for a while.

The chief justice's call to reform court structure doesn't come out of the blue. While Burger up to now has been fairly judicious on the issue, at least six of his Supreme Court colleagues have been more vocal during the past year.

For example, Justice John Paul Stevens favors creating a new court to help the Supreme Court screen cases for review. Justice Lewis F. Powell would divide case filings among justices so each justice wouldn't have to read every case. Justice Byron R. White would require district courts of appeals to meet ''en banc'' (with all members participating) before voting to differ with another court of appeals.

Legal experts here at the ABA meetings suggest other changes short of creating another court. They include increasing the number of summary judgments made by the court without oral arguments; making discretionary certain cases the court is now required to take, changing the ''rule of four'' to five (now four justices must concur before a petition to hear a case is granted), and urging Supreme Court justices to use greater self-restraint when decided which cases to review.

Some legal experts here are concerned about Burger's proposed ''temporary'' panel. They argue that the government bureacracy tends to make interim bodies permanent regardless of their effectiveness. The chief justice is known to favor annual scrutiny of the courts by Congress. He favors a ''sunset'' law to phase out this court after five years.

US Sen. Howell Heflin (D) of Alabama recently introduced a bill to set up a federal court to resolve intercircuit conflicts. Although there is little precedent for it, observers here believe the chief justice feels so strongly on the issue that he might consider testifying before Congress.

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