the state of the judiciary address: the time is now for the intercircuit panel

THE STATE OF THE JUDICIARY ADDRESS: The Time is Now for the Intercircuit PanelAuthor(s): Warren E. BurgerSource: ABA Journal, Vol. 71, No. 4 (April 1985), pp. 86-91Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20757750 .

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THE STATE OF THE JUDICIARY ADDRESS

The Time is Now for the

Intercircuit Panel

By Warren E. Burger

The following is the edited text of the report of the Chief Justice of the Unit ed States, delivered at the midyear meeting of the American Bar Associa tion in Detroit on February 17.

In the life of every institution, changes sometimes occur so gradually and subtly that they elude the eyes of the casual observer and often elude even the atten

tion of those directly involved. In this 16th annual report, I will discuss the steady growth of case filings and signed opinions of the Supreme Court from Chief Justice Warren's first term to my first term and to the present. This inexor

able growth is the kind of gradual and subtle change that easily goes unnoticed.

Plenty of debate Changes in the structure of the judicial

system should be approached with care and caution and made only after deliber ation and debate. However, this subject has now been under consideration for more than a dozen years and the real question is whether we have debated and discussed it long enough.

In 1971 a Study Group on the Caseload of the Supreme Court was appointed under the auspices of the Federal Judicial Center. It came to be known as the Freund Committee because it was chaired by a distinguished lawyer and scholar, Professor Paul Freund of Har

vard, a practitioner before the Court and a notable scholar of the Court's work. In an earlier day he had served as law clerk to Justice Brandeis, and he understood

the mechanisms, the internal workings, of the Court from his tenure as a clerk as well as from the period when he appeared before the Court as an assistant solicitor general.

The report of the Freund Committee urged that an additional court be added to the federal system?an appellate tribu

nal between the courts of appeals and the Supreme Court. Our profession, being accustomed to rely on precedent?some might say addicted to precedent?had a

variety of reactions. Some were favor

able, some were opposed and some were

non-committal. Members of the Supreme Court were of divided views. Judges, no less than others, are sometimes slow to

accept change or to delegate power. Those of us who were concerned about

this problem had no illusions that there would be speedy action, but we knew the discussion and the debate had to begin sometime, and the Freund report with its recommendations was a good beginning.

The same conclusions In my 1970 annual report on the state

of the federal judiciary I urged that Con gress create a Judiciary Council to ob serve and report on a broad range of

problems of the judiciary. The Congress created the Commission on Revision of the Federal Court Appellate System, chaired by Sen. Roman Hruska of Ne braska. The members were appointed by the Congress, by the president and by

me. As to the Supreme Court, it came to almost the same conclusion as that

reached by the Freund Committee, that an appellate tribunal between the courts of appeals and the Supreme Court was needed. This report met some of the

86 ABA Journal, The Lawyer's Magazine



objections raised to the Freund proposal. Independent of either of these two

studies, another body that reviewed the appellate caseloads of the state and feder al courts was chaired by Professor Mau

rice Rosenberg of Columbia Law School. That committee came to similar conclu

sions with respect to the need for a "new nationwide or multicircuit" tribunal whose jurisdiction would be fixed broadly by Congress with functions and proce dures determined by the Supreme Court. What has happened since those re

ports? Congress has acted on some rec

ommendations, such as substantial elimi

nation of three-judge courts in 1976. In 1981 and 1983 Rep. Kastenmeier and others introduced a bill to create an ex

perimental Intercircuit Tribunal. There were 19 co-sponsors on the 1983 bill.

Sen. Heflin (former chief justice of Alabama) introduced bills for a National Court of Appeals in 1981 and 1982. An Intercircuit Tribunal bill was introduced in 1983 by Sens. Dole, Heflin and Thur

mond. Hearings were held by the Kasten

meier and Dole subcommittees, both of which reported a bill out to their full

judiciary committees in the last Con gress.

Significant figures What caused all three of these indepen

dent commissions, made up of highly experienced and distinguished members of our profession, to reach substantially the same conclusion? Can anyone look at the membership of those bodies and not conclude that these people represent the best of our profession?

Let me give you some significant fig ures which are important factors. Chief Justice Warren took office at the begin ning of the 1953 term. There were 1,463 cases on the docket. In the term complet ed last July, there were 5,100 cases on the docket.

From time to time some superficial observers brush off the number of filings, saying it takes only a few minutes to deal with the vast majority of them because they are frivolous. As with many sweep

ing generalities, there is a grain of truth in it, but it is a very small grain. I wonder how many lawyers would be happy to think their own petitions for certiorari

were disposed of "in a few minutes"? People who study this problem in the library, rather than in the real world

where judicial decisions are made, seem to think there is very little difference in dealing with 1,500 cases or 5,000 when every filing is processed in a conference of the Court.

The number of signed opinions is the best single measure of the workload of the Supreme Court. In 1954, when Chief Justice Warren completed his first term, there were 65 signed opinions by the Court. In this term 65 opinions were

already assigned to justices for writing by Dec. 15, 1984?just over two months after the term opened. Ponder that for a moment: if the present justices had stopped hearing cases in December 1984, they would have had as much work as in the entire 1953 term. (The next term, 1954, the Court had 78 signed opinions.)

When I completed my first term in 1970, there were 88 signed opinions of the Court. In the two most recent terms, there were more than 150 signed opinions each term. Years ago we passed any sensible limit on what the Supreme Court should be asked to do.

Still only nine justices One hundred years ago, when Grover

Cleveland was elected president, there

3

Chief Justice Warren Burger addressed the American Bar Association midyear meeting in Detroit on February 17. Shown with the chief justice are William W. Falsgraf, ABA president-elect (left) and John C. Shepherd, ABA president.

April 1985 . Volume 71 87



SUPREME COURT OF THE UNITED STATES NUMBER OF SIGNED OPINIONS AND CASES ON THE DOCKET PER TERM

were 55 U.S. district judges, nine U.S.

circuit judges, and 39 state supreme courts. All were deciding cases subject to

possible review by the Supreme Court. At that time there were nine Supreme Court Justices sitting in Washington. Today Ronald Reagan is president. There are 758 district judges and 226 circuit judges authorized, and about 27,000 state court judges. All of those judges are

deciding cases potentially subject to Su preme Court review.

And there are still nine justices on the

Supreme Court.

Why is it so difficult to grasp the reality that just as we need more police and more courts to deal with automobile traf fic than we did 75 years ago, when there were very few automobiles, we need

something more to deal with the ava lanche of cases coming to the Supreme Court. The same question can be put as to the increase in the complexity of our social and economic structure?and the

increase in crime.

It is elementary that when the "input" into any system is increased?when there

are more "customers"?one of two

things must happen: (a) the mechanisms to deal with the increased flow must be adjusted, or (b) the "output" mechanism must be enlarged or made more efficient.

We have already done everything prac ticable to meet these problems. Courts of appeals and district courts now have

court administrators to allow more effi

cient use of judges' time. We now use modern word processing equipment and computerized record keeping. More law clerks and secretaries have been added.

The courts have begun to impose sanc

tions on attorneys who bring frivolous cases or abuse judicial processes. Every where throughout the system there have been great improvements in how cases

are processed. It is ironic that the very efficiencies that

have been achieved in district and circuit courts simply bring more cases sooner to

the Supreme Court. Today the judges of the federal system at every level are

disposing of more cases per judge each year than at any other time in history. Each district court judgeship terminated an average of 517 cases in 1984. Each court of appeals panel (one panel per three judgeships) terminated an average of 709 cases in 1984.

The proposal What I now press upon you and the

Congress is a modification of the Freund and Hruska proposals. The debate on this subject has been valuable and led to

improvements over the original propo sals. Now, rather than a permanent inter

mediate court of the kind recommended by those studies?a National Court of

Appeals?I propose we create a tempo

rary and experimental panel?an Inter

circuit Panel?made up of judges of the courts of appeals, including, of course, senior circuit judges. We can experiment with that panel for up to five years by assigning to that panel the task of resolv

ing conflicting holdings of the several circuits. This would mean that judges from the level where conflicts arise would be charged with the duty to resolve such conflicts.

Conflicts at the court of appeals level

are largely due to mf?rcircuit conflicts, but with courts of appeals now having as

many as 28 judges, wiracircuit conflicts are arising. /wiracircuit conflicts are theo

retically, but not invariably, resolved by having the case reviewed en banc. What I now propose amounts to nothing more

than that we have a national en banc

panel of nine judges. It is just that simple. And because this would be a process of

resolving conflicts among the circuits, the logical source for these decision makers is, as I suggested earlier, to draw upon the judges of the level where the conflicts originate, with the Supreme Court re

serving certiorari jurisdiction. Since I first advanced this proposal, it

has been refined, but there has been considerable misinformation about it. I will turn to deal specifically with some of the points critics have made. First, I will restate the proposal.

The Intercircuit Panel would be se lected by the Supreme Court from among the circuit judges. One judge would be drawn from each of the 13 courts of

appeals. This would permit a regular panel of nine with four judges in reserve. The nine-member panel would sit for two sessions of two weeks each per year.

Cases would continue to come from the

courts of appeals to the Supreme Court, but the Supreme Court would have the option to refer cases involving circuit conflicts and interpretation of federal statutes to the Intercircuit Panel.

"Tolerable conflict" In each of the past three terms of the

Supreme Court, we decided an average of 48 cases involving conflicts. Last term there were 55. Such cases could be re

ferred to the Intercircuit Panel unless the Court elected to resolve the conflict with out reference to the panel. We decline to hear numerous other conflicts if we see

them as "tolerable conflicts." Absent the need for immediate action by the Su preme Court, such cases could be re

ferred to this special panel. I would risk a

prediction that few cases would be grant ed further review by the Supreme Court.

I emphasize that this special panel would be experimental, with a five-year "sunset" provision. Within that time, we

would be able to determine whether this

plan works. Of course, if during that time we see that the experiment is not effec

CASES ON YEAR OPINIONS DOCKET

91 83 104 65 78 82 100 104 98 96 109 84 110 111 101 97 100 110 99 88 106 129 140 140 123 135 126 129 130 130 122 141 151 151

1335 1368 1437 1463 1566 1856 2052 2008 2062 2178 2313 2585 2824 2779 2662 3284 3356 3586 3918 4202 4212 4533 4640 5079 4668 4761 4731 4704 4731 4781 5144 5311 5079 5100




tive, it could be terminated immediately simply by the Supreme Court's decision not to send any additional cases to the panel. The uniqueness of this proposal is

that there will be no new bureaucracy

seeking to perpetuate jobs. In a day when the ominous shadow of

annual and past deficits hangs over the

country, I am comforted somewhat in

pressing this position by saying that it will not cost the taxpayers additional money

except for the relatively nominal factor of

the travel expense of the nine judges coming to Washington, D.C., twice a

year for not more than two weeks each

time. It would not require a new court

house; it would not need a new court

room; it would not need a permanent court clerk. The Court of Appeals for the Federal Circuit has tendered its court

room. Existing staffs of the Court of Appeals for the Federal Circuit or the Supreme Court can absorb the extra duty of preparing the docket.

There is, of course, nothing new or

drastic about creating special panels, drawn from among the judges presently in office. In the past 20 years Congress has created many special, temporary pan els, including one for the selection of a so-called special prosecutor, the Tempo rary Emergency Court of Appeals, the

Multi-District Litigation Panel, and two Foreign Intelligence Surveillance Courts.

Members of these panels are designated from among the present federal judges; no new permanent court structure is cre

ated. More than 60 judges have been designated to these panels by me since 1969 under authority granted by Con gress. I have not heard of any complaint about the personnel or the performance of those special panels. The Supreme Court has long delegated authority to special masters to spare it much of the time required to decide suits between the states or between states and the federal

government. The Court then acts on

findings and conclusions of the special masters.

Rebutting the critics Some witnesses before congressional

committees supported this experimental plan, but some were opposed; Much of

the opposition was based on misinforma

tion. For example, one witness argued that the shifting members of the panel would create conflicts within the tribunal itself. That was based on outdated infor

mation: the current proposal is for a

nine-judge panel that will sit on all cases. When any member of the panel is un

available or ineligible, one of the four "reserve judges" would be drawn by lot.

Another witness said that conferring on such a court the authority to hear cases

coming from state courts is unprecedent ed and possibly unconstitutional. This panel will not deal with state court cases.

Another witness said there would be "mind-boggling" administrative prob lems of staff support for the panel. That is simply not correct; the administrative problems will be miniscule; actually there will be no significant "administrative problems."

Another criticism was that this panel would not really help the Supreme Corut very much. That, too, is inaccurate. If the

panel took 30 to 40 cases off of the Supreme Court calendar, that would ob

viously be of help to the Supreme Court. Independent studies have demonstrated

this. A study by the Department of Jus

tice supported the Intercircuit Panel. It concluded, "There should be an immedi

ate 25-30 percent decrease in the Court's

argument calendar. The proposal may induce an increase in the number of certiorari petitions, but this is conjectural and would in any event still produce a substantial net gain." What it could do is restore nearly the

kind of calendar that Professor Henry Hart and Justice Frankfurter postulated many years ago as the maximum caseload

that should be carried by the Supreme Court. Hart and Frankfurter based their

analyses and conclusions on a limit that

would maintain the quality that is called for by the kinds of cases and the basic function of the Court?the high quality the country has a right to expect. And in the 1958 term, when the Court was deal

April 1985 . Volume 71 89



ing with fewer than 100 full signed opin ions, Professor Hart in his annual review

of the Supreme Court's work in the Har

vard Law Review concluded, "The num

ber of cases which the Supreme Court tries to decide by full opinion, far from being increased, ought to be materially decreased." See "Foreword: The Time

Chart of the Justices," 73 Harv. L. Rev.

84, 99 (1959). At about the same time, Professor

Hart's former colleague Justice Frank

furter, by then sitting on the Supreme Court, said, "[T]he judgments of this Court are collective judgments. Such judgments presuppose ample time and freshness of mind for private study and reflection in preparation for discussion at conference. Without adequate study there cannot be adequate reflection;

without adequate reflection there cannot

be adequate discussion; without adequate discussion there cannot be that fruitful interchange of minds which is indispen sable to thoughtful, unhurried decision and its formulation in learned and im pressive opinions. It is therefore impera tive that the docket of the Court be kept down so that its volume does not pre clude wise adjudication." Dick v. New

York Life Insurance Co., 359 U.S 437, 458-59 (1959) (Frankfurter, J., dissent ing).

In the year Justice Frankfurter spoke there were 96 full signed opinions of the court.

The other objection for this temporary panel is that it would be an undue burden on the circuit judges. Let us take a look at that. As you know, the Supreme Court

hears 12 cases a week; 24 cases are

regularly heard in a two-week sitting.

Many courts of appeals panels hear more than 20 cases in a week. If we drew these nine circuit judges into Washington

?some of them senior judges?they could easily hear all of the cases that are

likely to be assigned to them in two two-week sittings each year.

I will not characterize the criticism that this proposal will place an "excessive"

load on the circuit judges. I will leave that to you to judge whether it would be an undue burden to take nine judges

?including senior judges?out of the 226 available circuit judges and bring them to

Washington for two two-week sittings a year.

Prompt settlement There is another value to this panel. If

all circuit conflicts are resolved promptly, the workload of the other federal courts could well be reduced in an important sense. At the present time, there are

issues of federal law that are litigated and

relitigated in the districts and circuits. For example, there have been seven court of

appeals decisions and 20 district court decisions on the issue of whether the U.S. Postal Service is immune from state gar nishment proceedings. See A. Leo Levin and Susan M. Leeson, "Issue Preclusion

Against the United States Government," 70 Iowa L. Rev. 113, 128-29 (1984). This is a kind of issue that could be settled promptly by the Intercircuit Panel with out waiting for a conflict. This could well spare many litigants and courts much litigation. One writer on this subject of the Su

preme Court caseload referred to our

present burden as a "self-inflicted

wound." This criticism was repeated in testimony before Congress. I must say, however, that criticism of the Court from practicing lawyers for granting too many certs is rare, but I have read a good deal of criticism that we do not grant certain cases that ought to be granted.

It does not take much study to see the vast changes in the content of court cal

endars in just the last 10 years. Many are types of cases never before dealt with by any courts at any time. This is a product of activist public groups pressing for new

legislation. And who is to say that Con gress should not be legislating or citizens should not press for clean air and clean

water, for better working conditions, for

greater equality, and for elimination of discrimination? Legislation in these areas and in dozens of other categories has increased the work of the district courts, the courts of appeals and the Supreme Court. Judges of district courts and courts of appeals have multiplied.

Only the Supreme Court has received no relief. Section 1983 actions alone have accounted for an enormous additional

load on all of the courts. Prisoner peti tioners have done the same. When we

increase the prison population in 10 years from 230,000 to 460,000, we should not be surprised that prisoner petitions reflect the urge of prison inmates to be heard.

In the February 1985 issue of the ABA Journal, David O. Stewart made this

point with great clarity: "[F]rom 1960 to 1983 civil cases filed in

the U.S. district courts increased by about 300 percent, from about 60,000 to 240,000. Over the same period the num ber of federal appellate decisions in creased by more than 600 percent, from 3,713 to 28,660.

"The major difference between the Su preme Court's caseload and that of the

lower courts, however, is that the lower

courts now have more judges than they used to, while there are still only nine




Supreme Court justices to screen four

times as many cases."

And, we might add, justices write full opinions in twice as many cases. The notion that the Court's problem is a self-inflicted wound simply "will not

wash."

"My wife isn't for it" On the lighter side, at one judicial

conference a circuit judge came up to me

and inquired how we were getting along with this proposed temporary experimen tal panel to deal with circuit conflicts. I gave him a brief response, and he said, "I want to tell you I am completely, whole

heartedly, 100 percent for the plan, but my wife?she is not for it." I knew I was

being baited to ask why, and of course I did.

His answer was about like this. "My wife is active in volunteer hospital work, church work and the bridge club. People ask her, 'What does your husband do,' and she answers, 'My husband is a circuit judge.' And she always straightens up when she says that. So the questioner may say, 'Is that like Judge Jones or Judge Butler?'?some local judges who may be justices of the peace or municipal judges. And my wife answers a firm, 'No.

My husband is on the second highest court in the country.' And, by George, Chief, she does not want to say I'm on the third highest!" Now we have even taken care of this

woman's concerns. Courts of appeals will

always be "number two." They will con

tinue to be final in more than 98 percent of their cases. The Intercircuit Panel can remain in the same category as the four other special panels created by Congress in recent years. The judges of the Inter

circuit Panel will be circuit judges on

special assignment. For all this woman knows, her husband may be on the new

panel. Will this plan work? There, I must be

completely candid; I do not know. No one can really know with any certainty. That is why we need to experiment for a few years, and if we find the panel works, it can be continued in this form. I empha size that if after two or three years, we

conclude that it is not helping, we can abandon it. In any event the statute

would have a five-year "sunset" provi sion. Until someone comes along with a

better idea, I submit that this is worth a try.

This subject is of such great impor tance to the work of the Supreme Court

?and to the country?that I urge you to

let your views be known to the Congress.

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the state of the judiciary address: the time is now for the intercircuit panel

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