Chief Justice Burger has long warned of a breakdown in the US justice system unless the ballooning caseload of the Supreme Court is reduced. Now he has spelled out a bold experiment - a special federal appeals court to ease the burden on the Supreme Court for five years while more permanent solutions are sought.
Both Congress and private citizens are challenged to respond.
For Congress this means two things:
* Pushing laws to activate the Burger plan or an effective alternative. Without a full-scale legislative effort, the argument will never be fully aired between reformers and those who believe substantial change is unnecessary or demeaning to the stature of the court.
* Testing all statutes on whether they create more causes for legal action like the plethora of new ones cited by Mr. Burger as weighing down the justices. Not that Congress should refrain from developing new legal protections where necessary. But how about some sort of ''litigation impact statement'' to help lawmakers foresee the results of their work?
For private citizens the challenge is likewise twofold:
* As individuals they can help resolve more disputes outside the courtroom, as Justice O'Connor has urged. She suggests America's litigious society need not be as litigious as it is if people would remember the golden rule of doing unto others as they would be done by: ''That might make you a little more generous, save you a lot of time and money, and make my job a lot easier.''
* Private citizens can also help through their companies or other institutions. For example, Mrs. O'Connor calls on businessmen to consider providing in their contracts that any dispute be resolved by arbitration. She notes the delays and costs that can be avoided through legislatively mandated arbitration, simplified probate proceedings, and dispute resolution centers where laymen rather than lawyers help mediate landlord-tenant and other problems between citizens.
Yes, the public can foster a climate for lessened litigation. But the Supreme Court's rising caseload needs specific attention now. Ironically, for all the warnings by Mr. Burger and other justices, there has been a decline in the caseload this term. But such a dip is seen as affected by the high cost of litigation running into the recession. The expectation is for numbers between 4, 000 and 5,000 a year to continue, with the justices writing opinions on 140 to 150.
A tall order compared to the thousand cases coming before the court a generation ago. Or compared to the 400 to 500 it would receive under a screening plan proposed some time ago by a commission headed by constitutional law professor Paul Freund. The weeding out would be done by a new judicial body.
This far-reaching reform has been criticized as cutting off litigants from the right of Supreme Court review. But, even as it is, there are many conditions under which appeal to the Supreme Court is not guaranteed. Congress ought to look into the matter as it considers the whole question.
Chief Justice Burger's proposal echoes another part of the Freund recommendation: a body to decide cases referred by the Supreme Court. These would mainly have to do with conflicts of interpretation between the circuit courts - conflicts that occur frequently in such realms as social security, environmental law, taxation, and labor relations. There would still be right of review by the Supreme Court, but the presumption would be to let the new body's decisions stand and cut down on resort to the high court.
Naturally there has been skepticism over Mr. Burger's suggestion of a ''temporary'' body, what with the potential difficulty of dismantling a court once it is established. He has wisely sought to address such skepticism by suggesting that the body not have its own quarters but take up residence in existing facilities. He would have it report each year on how well the experiment is going. Meanwhile, a new commission would undertake an overall study of the court structure with an eye to future recommendations.
Can America afford to do less when its chief justice warns of judicial breakdown?