The US Supreme Court is sending up distress signals.
Justices face a litigation explosion.
The court meets the first Monday of October, and seven of the nine justices have already discussed their workload and hinted that justice may deteriorate if something isn't done. Back in 1961 the caseload for a term was 2,000; the latest figure for the 1981-82 term is a record-breaking 4,400.
One proposal here is that before the court hears a case it prepare a formal statement of the facts on the caseloads and present it to the President, to the Congress, and to the nation. This would be unprecedented. In effect the majority of the court has been doing that individually in an apparently uncoordinated appeal.
In the past Chief Justice Warren Burger and Justice John Paul Stevens have proposed that the nation establish a new type of court to winnow out some of the cases that now rise to the highest tribunal.
Another idea is that the lawyers who bring cases to trial and appeal them upward show greater restraint. Or maybe the high court itself should show greater self-discipline in deciding what cases it will hear. Now comes the remarkable and apparently spontaneous agreement by the black-robed justices that something needs to be done.
The nine justices conferred this week on their forthcoming docket in the first meeting since their individual speeches on calendar congestion began appearing. What action they will take on the situation, if any, is uncertain.
''Some of the things the justices discuss (in their speeches) don't have anything to do with legislation,'' says Craig Baab, the American Bar Association's staff director for governmental liaison. Instead, he says, many of their ideas deal with the court's ''internal functions.''
Still, the pleas have not fallen on deaf ears. There are a number of bills pending in Congress that either directly or indirectly could influence the high court's caseload.
One, sponsored by Sen. Howell Heflin (D) of Alabama, would establish a National Court of Appeals. This court would take cases referred to it by the Supreme Court. Such cases might include questions of conflicts between circuit courts. Constitutional questions would still have to be dealt with by the high court.
One provision of the Federal Court Reform Act, which has passed the House and is pending before the Senate, would abolish the existing priority system for civil cases. Currently, when Congress passes a law, it can (and often does) stipulate that if a case involving the law is appealed, the appeals court must give it priority over other cases on its docket. The reform act also would prevent Congress from forcing the high court to hear certain kinds of cases, except those involving certain criminal matters.
The sequence of events in recent months emphasizing the need for court reform:
In a major speech at the American Bar Association last winter, Chief Justice Burger pointed to court congestion and said it was getting out of hand.
In August, Justice Stevens warned the American Judicature Society that ''the mounting tide of litigation'' threatens ''to engulf our court.'' He acknowledged that he delegated to his clerks considerable responsibility in screening requests for reviews saying that they select the cases that he himself should examine.
On Sept. 9, Justice Thurgood Marshall in an address to the 2nd US Circuit Judicial Conference, deplored the frequency of ''summary'' decisions without full briefs and arguments. They are becoming increasingly frequent, he complained. Such ''cursory treatment'' creates substantial ''potential for error and correction'' and results in ''cavalier treatment'' of important matters. In a ''disproportionate number'' of these cases, he said, the result is to uphold the actions of official authority - school board members, wardens or prosecutors.
The same day, Justice William J. Brennan Jr. told the 3rd US Circuit Judicial Conference, ''The screening function is an indispensable and inseparable part of the entire process and . . . cannot be withdrawn from the court without grave risk of impairing the very core of the court's unique and extraordinary functions.''
Justices Byron R. White and Lewis F. Powell Jr. addressed the American Bar Association last August and each voiced concern over the workload.
Justice White noted that the schedule for arguments in the term beginning Oct. 4 is already full through February 1983 and will be completely booked by the end of November: ''What this means is that we shall not be current in our work; cases will be ready for argument and we shall not be ready for them. This is something new and disturbing. . . .''
Justice Powell said the need ''for fundamental changes requiring congressional action is self-evident if we are to preserve our federal system of courts, as contemplated by the Constitution.'' What should Congress do? It should ''curtail the flow of cases into the federal court system at its lowest level. . . .'' he said.
Justice William H. Rehnquist, speaking at the University of Kentucky Sept. 23 , is the latest to warn of escalating caseloads. Judges no longer have adequate time to devote to the arguments, he said, and are in danger of becoming ''managers'' who delegate the power to subordinates.