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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Intercircuit Tribunal\n(4 of 5)\nBox: 29\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nTHE WHITE HOUSE\nWASHINGTON\nNovember 4, 1983\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\nare\nSUBJECT:\nIntercircuit Tribunal Proposal\nJonathan Rose has sent you a copy of draft testimony he\nproposes to give on November 10 before Representative\nKastenmeier's Subcommittee on Courts, Civil Liberties and\nthe Administration of Justice. The testimony has been\nsubmitted to OMB for clearance, and Rose indicates that he\nis providing you with a copy to expedite the review process.\nWe have also received a copy of the testimony from OMB's Jim\nMurr, who has asked for our views by close of business\nTuesday, November 8.\nThe 45-page testimony is divided into four parts, and only\nPart IV, concerning the Intercircuit Tribunal proposal, is\ncontroversial. Part I provides factual information on the\nSupreme Court's workload. Part II reiterates our arguments\nin favor of judicial restraint, and notes the effect broader\nadoption of this judicial philosophy would have in reducing\nthe existing burden on the federal courts. Part III\nreaffirms Administration support for pending legislative\nproposals that would alleviate the burden on the federal\ncourts, including repeal of Supreme Court mandatory\njurisdiction, abolition of diversity jurisdiction, habeas\ncorpus reform, use of administrative alternatives to\nlitigation, and other miscellaneous reforms.\nThe discussion of the Intercircuit Tribunal proposal begins\non page 30. The discussion is essentially identical to that\nin the proposed Justice Department report on S. 645, which\nwas blocked in August and precipitated the meeting we had\nwith Mr. Meese on this subject. In his cover memorandum to\nyou, Rose states that the Attorney General believes that\nsupport for the Intercircuit Tribunal along the lines of the\nproposed testimony \"is consistent with the decision of the\nPresident at the Cabinet meeting last spring.\" Betraying\nsomething less than complete confidence in this view,\nhowever, Rose has included, at Tab 3 of this package,\nalternative language should the Administration decide to\ncontinue to oppose the Intercircuit Tribunal proposal.\nIf the Administration is going to oppose the Intercircuit\nTribunal, the alternative language proposed by Rose at Tab 3\nwould adequately do SO. If, on the other hand, we are to\nsupport the Intercircuit Tribunal, the proposed testimony at\npages 30-45 does so in the least objectionable manner. You\nwill recall that our meeting with Mr. Meese was somewhat\ninconclusive, but the impression I was left with was that we\nwould support the proposal only if it was going to be\nenacted in any event.\nMy view is that the proposal is not an unstoppable\njuggernaut. The letter from Representative Kastenmeier\nrequesting the testimony supports this view. He writes that\n\"a strong consensus has not yet appeared\" concerning the\nIntercircuit Tribunal. He also disclosed a plan to canvass\nthe Justices on the proposal, and I suspect the results will\nshow opposition from three and maybe four Justices -- hardly\na formidable endorsement.\nYou are familiar with the arguments on both sides of this\nissue; all that remains is for the Administration to decide.\nIt is worth noting, however, that Kastenmeier explicitly\nstated in his letter that \" the Department need not take a\nposition on any of the legislative proposals pending before\nthe subcommittee.\" The inclusion in Rose's package of\nalternative language opposing the Intercircuit Tribunal\nstrongly suggests to me that the Justice Department is ready\nto throw in the towel. I recommend that we adhere to our\nopposition to the Intercircuit Tribunal, and support the\nalternative language found at Tab 3 of the Rose package. In\nlight of our previous meeting you will probably want to\nconsult with Mr. Meese on this question. I await your\nguidance on what sort of memorandum to prepare for Murr.\nTHE WHITE HOUSE\nWASHINGTON\nNovember 8, 1983\nMEMORANDUM FOR JAMES C. MURR\nASSISTANT DIRECTOR FOR LEGISLATIVE AFFAIRS\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nFRED F. FIELDING Orig. signed by FFF\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nProposed Statement of Jonathan Rose re:\nWorkload of the Supreme Court for Senate\nSubcommittee Hearing on November 10, 1983\nCounsel's Office has reviewed the above-referenced proposed\nstatement. We continue to oppose the Intercircuit Tribunal\nproposal, for reasons we have stated at length on prior\noccasions. Accordingly, we recommend that Part IV of the\nproposed statement be revised along the lines suggested by\nthe Department of Justice in the event the Administration\nopposes the Intercircuit Tribunal (see attached).\nCC: Michael Uhlmann\nFFF: JGR:ph 11/8/83\nCC: FFFielding\nJGRoberts'\nSubject\nChron.\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\nB\nO OUTGOING\nH INTERNAL\nI . INCOMING\nASAP\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent: Jonasthan C. Rose\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject:\nTestimony on the Supreme Court's\nWorkload and the Intercircuit Tribunal\nProposal\n(NOV. 10, 1983)\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nWHOLL\nORIGINATOR\n83/11/04\n/ /\nReferral Note:\nCUAT18\nD\n83,11,04\n5 83,11,07\nReferral Note:\n/\n/\n/\n/\n-\nReferral Note:\n/ /\n/ /\n-\nReferral Note:\n/\n/\n/\n/\nI\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA - Appropriate Action\nL. . Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC Comment/Recommendation\nR. Direct Reply w/Copy\nB . Non-Special Referral\nS Suspended\nD Draft Response\n$ For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nU.S. Department of Justice\nOffice of Legal Policy\nAssistant Attorney General\nWashington, D.C. 20530\nMEMORANDUM\nNovember 2, 1983\nTO:\nFred F. Fielding\nCounsel to the President\nFROM:\nJonathan C. Rose\nAssistant Attorney General\nSUBJECT:\nTestimony on the Supreme Court's\nWorkload and the Intercircuit\nTribunal Proposal\nAttached is draft testimony for the hearing on the\nSupreme Court's workload and the Intercircuit Tribunal proposal,\nwhich I am scheduled to give on November 10, 1983, before Rep.\nKastenmeier's Subcommittee on Courts, Civil Liberties and the\nAdministration of Justice. The Department's Office of Legisla-\ntive Affairs is submitting this today to OMB for clearance.\nAs I am scheduled to testify next Thursday, I would\nhope that OMB clearance of this draft testimony could be obtained\nby early next week. I am providing you with a copy of it in the\nevent that this may speed along the review process.\nTab 1 is the executive summary of the testimony, Tab 2\nis the draft testimony, and Tab 3 is the set of changes that\nwould have to be made to the testimony in the event it is deter-\nmined that the Administration should not support the limited\nIntercircuit Tribunal proposal discussed in the draft testimony.\nI see no reason why we should not be able to receive\nexpeditious clearance of Parts I, II, and III of the draft\ntestimony. Part I is factual information on the Supreme Court's\nworkload and a defense of the Department's institutional litiga-\ntion policies. Part II is a review of the conservative position\non the need for judicial restraint. Part III restates Adminis-\ntration support for proposals that we have already endorsed and\nnotes other court reform issues that are suitable for further\nstudy.\n- 2 -\nIt seems that only Part IV, which states our very\nqualified support for the Intercircuit Tribunal proposal, could\nbe the subject of any debate. The Attorney General believes that\nqualified support for the Intercircuit Tribunal along the lines\nstated in the draft testimony is consistent with the decision of\nthe President at the cabinet meeting last Spring. In the event\nthat, in the final analysis, we are unable to support the Inter-\ncircuit Tribunal, the testimony, amended as provided at Tab 3,\nshould be cleared.\nIf you have any questions about this, please do not\nhesitate to call me.\nAttachments\nExecutive Summary\nTestimony of Jonathan C. Rose\nConcerning\nThe Workload of the Supreme Court\nBefore The Committee on the Judiciary,\nSubcommittee on Courts, Civil Liberties\nand the Administration of Justice\nNovember 10, 1983\n1. Statistics support the statements of the Justices\nthat there is a serious workload problem in the Supreme Court.\nHowever, statistics also indicate that the government's\nlong-standing litigation policies have not been the cause of this\nproblem.\n2. In the long run, the surest way to reduce the\nCourt's workload is to stop and then reverse the caseload\nexplosion in the lower federal courts. This can be accomplished\nwith the exercise by the courts of greater judicial restraint,\nand the enactment by the Congress of statutes that will not have\nthe effect of encouraging additional litigation.\n3. A number of specific proposals currently before\nCongress would have the effect of immediately reducing the\nfederal caseload. The Administration is already on record as\nsupporting the proposals to repeal most of the Supreme Court's\nmandatory appellate jurisdiction, repeal diversity jurisdiction,\nenact habeas corpus reform, and authorize civil penalties for\nfederal programs fraud. In addition, a number of other court\nreform proposals should be given further study.\n4. While the Administration continues to oppose the\ncreation of a permanent National Court of Appeals, it supports\nthe creation of a temporary, properly structured Intercircuit\nTribunal as a short-term means of reducing the Supreme Court's\ncaseload. This would provide Congress with the time necessary to\nenact a broad based program to address effectively the underlying\nproblem -- the explosive growth in the federal caseload.\n5. In the event that the Administration determines\nthat it cannot support the Intercircuit Tribunal on the limited\nbasis stated in the testimony, we have provided a set of changes\nto the testimony. As changed, the testimony would decline to\nsupport the Intercircuit Tribunal, at least until Congress takes\naction on existing legislative proposals to reduce the federal\ncaseload.\n- 2 -\nneeded to alleviate the admittedly serious workload problem\nin the Supreme Court. We could endorse this proposal only\nafter Congress has acted on a number of the court reform\nproposals currently before it, which would address the underlying\nproblem of the caseload explosion in the Supreme Court and lower\nfederal courts. Existing proposals to repeal the Court's\nmandatory appellate jurisdiction, limit or repeal diversity\njurisdiction, and restrict prisoner petitions should be tried\nbefore, or at least at the same time as, a structural change of\nuncertain impact.\n4. Delete the last sentence of the paragraph on pp. 44-45,\nand add the following in its place:\n\"We believe that these proposals will go a long way\ntoward eliminating the underlying cause of the Court's\ncaseload crisis -- the burgeoning federal caseload. There-\nfore, we are unable to endorse the Intercircuit Tribunal\nuntil Congress takes action on these less fundamental but\nlikely more effective changes.\"\nThe following changes to this testimony could be made\nin the event it is determined that Part IV hereof is not consis-\ntent with the Administration's program.\n1. Delete the paragraph on pp. 1-2, except the first\nsentence thereof.\n2.\nDelete the second and third sentences of the\nfirst paragraph on p. 29.\n3. Delete the text and footnotes from the first full\nparagraph on p. 31 to the three asterisks on P. 44, and add the\nfollowing in its place:\n\"The Department has reviewed and carefully weighed the\nsubstantial amount of testimony that has been presented\nbefore both houses of Congress on the Intercircuit Tribunal\nproposal. The recommendation of Chief Justice Burger and\nthe favorable comments of several scholars of the federal\njudiciary must be given great weight. However, the support\nfor the Intercircuit Tribunal is not unanimous, and a number\nof serious concerns have been expressed about the impact\nthat such a tribunal would have on the operation of the\nfederal judiciary. 58/\n\"The Department is not able to endorse the Intercircuit\nTribunal proposal at a time when it is not clear that a\nsignificant structural change to the federal judiciary is\n58/ Judge J. Clifford Wallace,\n,\nCal. L.R.\n(1983) ; [adverse testimony]\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\nJR\nO OUTGOING\nH INTERNAL\nI INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent: James C. MURR\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: Proposed Statement of Jonathan Rose (Justice)\nconcerning the Workload of the Supreme Coust for Sinate\nSubcommitter heasing on November 10,1983\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nWHOLL\nORIGINATOR 83,11,04\n/ /\nReferral Note:\nCUAT18\n83,11,04\n5 82111108\nI\nReferral Note:\nCOB\n/ /\n/\n/\n-\nReferral Note:\n/\n/\n/\n/\n-\nReferral Note:\n/ /\n/\n/\nI\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\nI - Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC - Comment/Recommendation\nR. - Direct Reply w/Copy\nB Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF - Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nEXECUTIVE OFFICE OF THE PRESIDENT\nOFFICE OF MANAGEMENT AND BUDGET\nWASHINGTON, D.C. 20503\nNovember 4, 1983\nSPECIAL\nLEGISLATIVE REFERRAL MEMORANDUM\nTO:\nLEGISLATIVE LIAISON OFFICER\nAdministrative Office of the U.S. Courts\nSUBJECT: Proposed statement of Jonathan Rose (Justice) concerning the\nWorkload of the Supreme Court for Senate Subcommittee hearing\non November 10, 1983.\nThe Office of Management and Budget requests the views of your\nagency on the above subject before advising on its relationship\nto the program of the President, in accordance with OMB Circular\nA-19.\nPlease provide us with your views no later than COB TUESDAY, 11/8/83.\nNOTE: See attached invitation concerning scope of issues which the Committee\nexpects Justice to address.\nDirect your questions to Branden Blum (395-38,02), the legislative\nattorney in this office.\nJames MUIT for\nAssistant Director for\nLegislative Reference\nEnclosure\nCC: M. Uhlmann\nJ. Cooney\nF. Fielding\nK. Wilson\nNINETY-EIGHTH CONGRESS\nGENERAL COUNSEL\nALAM A. PARKER\nPETER W. RODING. - PN-11 CHAIRMAN\nSTAFF DIRECTOR:\nJACK BROOKS, TEX\nHAMILTON FISH, JR. N.Y.\nGARNER J. CLINE\nROBERT W. KASTENMINER WIS.\nCARLOS J. MODRHEAD, CALIF.\nDON EDWARDS. CALIF\nHENRY J. HYDE ILL\nJOHN CONYERS, JR MICH\nH.S. house of Representatives\nASSOCIATE COUNSEL\nTHOMAS N KINDNESS, OHIO\nALAN F. COFFEY. JR\nJOHN SEIBERLING DHIO\nHAROLD $. SAWYER MICH\nROMAND L MAZZOU. KY,\nDAN LUNGREN. CALIF.\nWILLIAM J. HUGHES. KJ.\nF. JAMES SENSENBRENMER. M WIS.\nCommittee on the Judiciary\nSAM B. MALL x TEX\nBILL McCOLLUM. FLA\nMIKE SYNAR OKLA\nE. CLAY SHAW, JR. FLA.\nPATRICIA SCHROEDER COLO.\nGEORGE W. GEKAS. PA.\nMashington, B.C. 20515\nDAN GLICKMAN, KANS.\nMICHAEL DEWINE OHIO\nBARNEY FRANK MASS.\nGEO. W. CROCKETT. JR MICH\nTelephone: 202-225-3951\nCHARLES E SCHUMER X.Y.\nBRUCE A. MORRISON, COWN\nEDWARD F. FEIGHAN, OHIO\nLAWRENCE d. SMITH, FLA\nHOWARD L BERMAN, CALIF.\nOctober 6, 1983\nFREDERICK C. BOUCHER VA.\nHonorable William French Smith\nAttorney General\nESPUTY DEPARAL ATTORNEY\nEXECUTIVE OFFICE SECRETARIAT\nDEPT RECEIVED OF JUSTICE\nUnited States Department of Justice\n10th and Pennsylvania Avenue, N.W.\n1903 OCT 11 Pil 1: 22\nWashington, DC 20530\nDear Mr. Attorney General:\nThe purpose of this letter is to invite your testimony -- or an\nindividual in the Department with substantial experience with\nrespect to litigation policies in the Supreme Court -- on the\nissue of \"Supreme Court Workload.'\nOCT\n830\nMy subcommittee has already held three days of hearings on the\nLEGIS\nCourt's workload crisis and on legislative proposals to alleviat\nthe crisis. To summarize the hearings thus far, I think it fais\nto state that there is Virtual unanimity among interested parties\nOFFICE OF\nthat the Court's mandatory jurisdiction could and should be\nabolished (see H.R. 1968). The Department subscribed to this\nPH\nREFAIRS\nview in a recent letter from Assistant Attorney General Robert\nMcConnell to Chairman Peter W. Rodino, Jr. (September 8, 1983)\nAs to the proposed creation of an experimental Intercircuit\nTribunal (see H.R. 1970), in spite of widespread and bipartisan\nsupport, a strong consensus has not yet appeared. As you know,\nthe Department has not yet formulated a position on the Inter-\ncircuit Tribunal proposal.\nAlthough eight Justices have already spoken on the general proposi-\ntion that the Court is overtaxed, my subcommittee is still par-\nticularly interested in identifying the nature of the problem\nbefore moving to legislative solutions. In this regard, I have\naddressed a letter to the Chief Justice asking for reiteration of\nhis views as well as those of the Associate Justices. I similarly\nhave asked each and every subcommittee witness whether there is\na compelling need for change, both from a workload and circuit\nconflict perspective.\nThe United States, ably represented by the Solicitor General's\noffice in the Department of Justice, participates in more Supreme\nCourt cases than any other litigant. Between the years 1976 and\nHonorable William French Smith\nPage 2\nOctober 6, 1983\n1981, the Government participated in more than 45 percent of the\ncases before the Court. Petitions for certiorari filed or sup-\nported by the United States have a very high likelihood of being\ngranted by the Court. Moreover, cases decided on the merits by\nthe Court in which the Government has participated more likely\nthan not are decided in the Government's favor. The importance\nof the Supreme Court to the Department of Justice is thus worth\nnoting on the record.\nIn addition, the Government plays a very important role in the\narea of creating or avoiding circuit conflicts. Several wit-\nnesses -- including individuals with extensive service in the\nDepartment of Justice -- have so testified, stating that the\nsubcommittee ought to receive testimony from the Department on\nthe circuit conflict issue.\nWith these thoughts in mind, I therefore request a Departmental\nwitness to provide the subcommittee with testimony on the presence\nand nature of the Supreme Court's workload crisis. The hearing\nwill be held on November 10, 1983 in a room to be announced.\nUnless you decide otherwise, the Department need not take a\nposition on any of the legislative proposals pending before the\nsubcommittee.\nThank you for your cooperation in this important matter affecting\nthe Third Branch of Government. Given the Chief Justice's\ninterest in the matters discussed herein, I have taken the liberty\nof forwarding him a copy of this letter.\nSincerely,\nROBERT W. KASTENMEIER\nChairman,\nSubcommittee on Courts,\nCivil Liberties and the\nAdministration of Justice\nRWK:mrs\nCC: Honorable Warren E. Burger\nSTATEMENT\nOF\nJONATHAN C. ROSE\nASSISTANT ATTORNEY GENERAL\nOFFICE OF LEGAL POLICY\nCONCERNING\nTHE WORKLOAD OF THE SUPREME COURT\nBEFORE\nTHE COMMITTEE ON THE JUDICIARY\nSUBCOMMITTEE ON COURTS, CIVIL LIBERTIES\nAND THE ADMINISTRATION OF JUSTICE\nOF THE\nUNITED STATES HOUSE OF REPRESENTATIVES\nNOVEMBER 10, 1983\nMr. Chairman and Members of the Subcommittee:\nI am pleased to appear today to discuss the nature and\ncauses of the workload crisis now faced by the Supreme Court of\nthe United States, and some possible solutions to that problem.\nMy testimony today is divided into four parts. The\nfirst part addresses the threshold issue of the existence of a\nworkload problem in the Supreme Court. It also addresses the\nspecific inquiry suggested in the invitation to testify -- the\nrole that government litigation policy has played in the growth\nof the Court's workload.\nI will then discuss the causes of the rising federal\ncaseload, and some measures that should be taken to reduce it.\nSpecifically, Part II discusses the need for greater judicial\nrestraint and for Congress to avoid enacting legislation that\nencourages litigation. Part III discusses a variety of legisla-\ntive proposals, most of which are already before Congress, which\nwould substantially reduce the caseloads of the Supreme Court and\nthe lower federal courts.\nIn the fourth and final part of my testimony, I will\naddress the Intercircuit Tribunal proposal. To summarize our\nconclusion, we do not believe that a sufficient case has been\nmade that the creation of an adjunct tribunal to the Supreme\nCourt is necessary as a long-range solution to the Court's\n- 2 -\nworkload problem. We do, however, support the creation of a\ntemporary, properly designed Intercircuit Tribunal as an immedi-\nate response to the current workload crisis. Such temporary\nassistance would provide Congress with the time to develop and\nenact more effective solutions to the explosive growth of federal\nlitigation.\nI.\nThe Supreme Court's Workload and Government Litigation\nA. The Supreme Court's Workload\nIn recent public statements, the Justices of the\nSupreme Court have been essentially unanimous in their view that\nthere is a serious workload problem in the Court and that remedi-\nal measures are necessary. The statistics concerning cases given\nplenary review by the Court provide independent support for the\nJustices' statements. Over the past few years, there has been a\nlarge increase in the number of cases argued before the Supreme\nCourt -- increasing from 156 in the 1979 Term to 183 in the 1982\nTerm. This increase in cases argued each Term has also been\naccompanied by a large increase in accepted cases carried over\nfrom Term to Term. 1/\n1/\nThe number of cases accepted for plenary review carried over\nto the next Term rose from 78 at the end of the 1979 Term to\n113 at the end of the 1982 Term.\n- 3 -\nSuperficially, it might appear that the Justices should\nbear some responsibility for this increase, because the Court has\ndiscretion to grant or deny certiorari with respect to over\nthree-fourths of the cases accepted for argument. However, the\ngrowth of the caseload in the federal court system as a whole\nmakes it clear that the Supreme Court's exercise of its\ncertiorari jurisdiction is not the essential problem.\nThe volume of litigation in the Supreme Court is\ndependent to a large degree on the number of potentially appeal-\nable decisions rendered in the lower courts. In the 1982 Term,\nfor example, about 4,200 new cases were filed in the Supreme\nCourt, in comparison with about 4,000 in the 1979 Term and 3,400\nin the 1970 Term. 2/ This increase in the Supreme Court's\ndocket, if anything, understates the dramatic increase in lower\ncourt caseloads in recent years. Between 1979 and 1983, for\nexample, filings in the district courts rose from 187,000 to\n2/\nStatistics in this statement on the Supreme Court and\ngovernment litigation in the Supreme Court are generally\ntaken from the annual reports of the Solicitor General's\noffice, which are published as part of the Annual Report of\nthe Attorney General. Year numbers given in connection with\nsuch statistics refer to the terms of the Supreme Court,\nwhich normally run from October of one year to June of the\nnext. For example, the 1982 term runs from October, 1982 to\nJune, 1983. Preparation of the report of the Solicitor\nGeneral's office on the most recent term (1982) has not been\ncompleted at this point; statistics relating to the 1982\nterm in this statement have been obtained from the office of\nthe Clerk of the Supreme Court.\n- 4 -\n278,000, and filings in the courts of appeals rose from 20,000 to\nnearly 30,000. 3/\nIf the Supreme Court is to discharge its responsibil-\nities of interpreting the Constitution, supervising the lower\ncourts, and resolving decisional conflicts, it is clear that the\nCourt cannot simply sidestep the caseload problem by reviewing an\never-smaller fraction of lower court decisions. Accordingly, the\nworkload of the Supreme Court cannot sensibly be separated from\nthe broader problem of overload in the court system as a whole.\nRemedial measures, if they are to provide more than temporary,\nsymptomatic relief, must address this broader problem.\nB.\nGovernment Litigation\n1. Litigation Statistics. The Subcommittee's in-\nvitation to testify asked that the Department of Justice address\nthe extent of government litigation before the Supreme Court, and\nits contribution to the Court's workload. While the government\ncontinues to be the most frequent party to appear before the\n3/\nThe statistics on inferior court caseloads in this statement\nare generally taken from the Annual Reports of the Director\nof the Administrative Office of the U.S. Courts. Year\nnumbers given in connection with such statistics refer to\nthe Administrative Office's reporting years, which end on\nJune 30. For example, reporting year 1982 covers the\ntwelve-month period ending June 30, 1982. Statistics\nrelating to the 1983 reporting year were obtained directly\nfrom the Administrative Office of the U.S. Courts.\n- 5 -\nCourt, the general level of government applications for review in\nthe Supreme Court has stayed the same over the past decade. The\naverage annual number of applications has been 68, ranging from a\nlow of 60 in 1978 and 1980 to a high of 80 in 1974. The figure\nfor the most recent term on which complete statistics are avail-\nable, 1981, was 74.\nThe government's applications for review are\nusually granted by the Court. Over the five year period from\n1977 to 1981, for example, 70 percent of the government's pe-\ntitions for certiorari were granted, ranging from a low of 58\npercent in 1977 to a high of 79 percent in 1981. 5/ This success\nrate reflects the careful screening of government cases by the\nSolicitor General's office before the decision is made to file a\npetition. In comparison, over the same five-year period, only\nfrom 5 percent to 6 percent of all petitions for certiorari filed\nin the Supreme Court were granted each year.\n4/\nGovernment applications from 1972 to 1981, including both\ncertiorari petitions and appeals, were as follows:\n1981-74; 1980--60; 1979--65; 1978-60; 1977--68; 1976--65;\n1975--61; 1974-80; 1973--75; 1972-73.\n5/\nFor the period from 1972 to 1981, government petitions for\ncertiorari accepted out of all government petitions for\ncertiorari were as follows: 1981-45 out of 57; 1980-31\nout of 50; 1979-43 out of 55; 1978-37 out of 52; 1977-33\nout of 57; 1976-37 of of 48; 1975-38 out of 50; 1974--47\nout of 66; 1973-39 out of 61; 1972-36 out of 52.\n- 6 -\nThe number of cases in which Supreme Court review\nwas sought by a private party suing or opposing the government in\nlitigation also has not changed significantly in the past decade.\nThe average annual number of applications was 1,627 for the\nperiod from 1972 to 1981, ranging from a low of 1,507 in 1972 to\na high of 1,906 in 1976. The figure for the 1981 term was 1,589. 6/\nIn recent years, the government typically has\nparticipated in some manner in about one-half of all cases\ndecided on the merits by the Supreme Court. In the five-year\nperiod from 1977 to 1981, the government participated in 48\npercent of such cases. 7/ During this period, 70 percent of the\ncases in which the government participated were decided in favor\nof the government's position. 8/\n6/\nThe number of applications for review against the government\nin the period 1972 to 1981, including both certiorari\npetitions to which the government was respondent and appeals\nin which the government was appellee, was as follows:\n1981--1,589; 1980--1,543; 1979--1,513; 1978--1,735;\n1977--1,669; 1976--1,906; 1975--1,532; 1974--1,655;\n1973--1,623; 1972--1,507.\n7/\nCases in which the government participated out of all cases\ndecided by the Court from 1977 to 1981 were as follows:\n1981-136 out of 315; 1980-128 out of 277; 1979-158 out of\n281; 1978-122 out of 267; 1977-139 out of 276.\n8/\nCases decided favorably to the government out of all cases\nin which the government participated from 1977 to 1981 were\nas follows: 1981-1111 out of 136; 1980-92 out of 128;\n1979-104 out of 158; 1978-82 out of 122; 1977--87 out of\n139.\n- 7 -\nThe statistical data suggests that the government's\nre-litigation policy has not been a significant factor in the\nrecent increase in the Supreme Court's workload. Both the number\nof cases argued before the Court in which the government was a\nparty 9/ and the number of cases accepted for review by the Court\nin which the government was a party 10/ have decreased each year\nsince 1979, and have generally decreased over the past ten years. 11/\n2. Litigation Policy. The Subcommittee's\ninvitation also requested that the Department discuss the effect\nof government litigation policy or practice on the generation or\navoidance of intercircuit conflicts. In general, the government\nis in the same position as other parties with regard to its\nability to re-litigate legal issues before different courts of\n9/ The number of argued cases in which the government\nparticipated as petitioner, respondent, appellant or\nappellee from 1972 to 1981 was as follows: 1981-57;\n1980--68; 1979-78; 1978--63; 1977--75; 1976-65; 1975--76;\n1974-89; 1973--67; 1972--75.\n10/ For example, the number of granted certiorari petitions\nfiled by the government together with the number of granted\ncertiorari petitions to which the government was respondent\nfrom 1972 to 1981 were as follows: 1981-63; 1980-79;\n1979-94; 1978-88; 1977-81; 1976--114; 1975-80; 1974-93;\n1973--108; 1972-87. When the number of mandatory cases\naccepted for plenary review (set for argument or\njurisdiction noted) in which the government was appellant or\nappellee are added in, the figures are as follows:\n1981-83; 1980-95; 1979-103; 1978-96; 1977-88;\n1976--123; 1975-94; 1974-114; 1973--128; 1972--102.\n11/ See also the figures cited in notes 4-8 supra.\n- 8 -\nappeals. Following an adverse decision, both the government and\nthe private parties it faces in litigation may assert the view of\nthe law each believes to be correct in later cases before other\ncourts of appeals, or even in later cases before the same court\nof appeals where that court is asked to overrule an adverse\nprecedent. Experience shows that the government's position is\nusually vindicated when the Supreme Court finally decides an\nissue that has been litigated in a number of circuits.\nThe timing of the decision to seek Supreme Court\nreview, as it relates to intercircuit conflicts, also merits some\nbrief discussion. If the initial decisions on an issue are\nfavorable to the government's position then there is, of course,\nno basis for the government to seek Supreme Court review. The\nquestion will only arise if private parties opposing the govern-\nment's position decide not to acquiesce in these decisions and\nobtain favorable rulings upon re-litigation of the issue in later\ncases.\nIn some cases where the initial decision is adverse to\nthe government, the issue presented is of such pressing impor-\ntance that we will seek Supreme Court review immediately. One\nexample is the district court decision in United States V.\nPtasynski, 12/ which invalidated the crude oil windfall profits\n12/ Ptasynski V. United States, 550 F. Supp. 549 (D. Wyo. 1982),\nrev'd, 103 S. Ct. 2239 (June 6, 1983).\n- 9 -\ntax. More frequently, however, Supreme Court review will not be\nsought until favorable decisions have been obtained in other\ncircuits. This practice reflects, in part, the fact that the\nSupreme Court is more likely to grant review if it sees a need to\nresolve a difference among the circuits. It also reflects the\ngeneral consideration that a reviewing court is more likely to\nuphold the position of a litigant if that position is supported\nby the reasoned opinions of inferior courts.\nAs a general matter, re-litigation of issues in differ-\nent circuits, within reason, is not undesirable and has positive\nvalue in promoting the sound development of the law. The appel-\nlate judges who first address an issue may not fully appreciate\nthe ramifications of their decision. Early decisions may be\nfound to be wrong or overbroad by courts that consider an issue\nlater with the benefit of both the initial decisions and the\narguments of counsel that focus on the reasoning and practical\nconsequences of those decisions. Re-litigation of an issue also\nenables the lower courts to set out different options and to\nexplore different resolutions of a legal question. This aids the\nSupreme Court when it finally considers the issue.\n- 10 -\nII.\nThe Need for Restraint\nA.\nJudicial Restraint\nWhile the Supreme Court cannot be faulted for hearing\nmore cases, in light of the caseload explosion in the district\nand circuit courts, it seems evident that some of the Court's\ndecisions have contributed to that explosion. In recent times,\nthe Supreme Court has demonstrated a hospitality to constitu-\ntional arguments which address claims the resolution of which has\ntraditionally been the responsibility of the state judiciaries or\nthe political process. It has been observed that the Court has\nbeen part of a trend wherein the role of the courts is viewed\nless as one of interpreting the Constitution and statutes, guided\nprincipally by their text and the legislative intent of the\nFramers and Congress, to one that encourages courts to resolve\npublic policy questions guided by the perceived values of an\nenlightened society. 13/ We view this trend of moving from\ninterpretivism to judicial activism as disturbing. To some\ndegree, decisions that expand rights and enlarge judicial rem-\nedies foster more litigation and counteract the intended effect\nof court reform legislation.\nThe growth of prisoner litigation provides a good\nillustration of this problem. Thirty years ago, the number of\n13/ See R. Bork, The Struggle Over the Role of the Court,\nNational Review, September 17, 1982, pp. 1137-39.\n- 11 -\nsuits brought by prisoners in the federal courts each year was\nabout thirteen hundred. 14/ Today, the annual figure is about\n30,000, and the number continues to increase rapidly from year to\nyear. 15/ Prisoner petitions are exceptional among major cate-\ngories of federal litigation -- not only are they typically\nfrivolous, but they are also largely unaffected by the normal\ndisincentives to litigation. The expense of attorney's fees and\nother costs -- a significant deterrent to frivolous suits in most\nother areas -- is largely absent, since most prisoners sue pro se\nand qualify for in forma pauperis status. 16/ Since litigation\nappeals to prisoners primarily as a legitimized form of aggres-\nsion against the system and a means of relieving boredom, 17/ the\nnormal disincentive of the stress and unpleasantness of litiga-\ntion is also largely inapplicable.\n14/ The number of prisoner suits in 1953 was 1,336; it had been\nfairly constant for the preceding decade and was 1,204 in\n1944. By 1961 the number had increased to 2,609; by 1970 to\n15,997; and by 1982 to 29,303. A table giving annual\nfigures from 1961 to 1982 appears in S. Rep. No. 226, 98th\nCong., 1st Sess. 4 n.ll (1983).\n15/ See S. Rep. 226, 98th Cong., 1st Sess. 4 n.ll (1983).\n16/ See P. Robinson, An Empirical Study of Federal Habeas Corpus\nReview of State Court Judgments 4 (a) (Dept. of Justice 1979)\n(in sample studied, 81.8% of habeas corpus petitions in\nforma pauperis and 79.2% pro se); Turner, When Prisoners\nSue: A Study of Prisoner Section 1983 Suits in the Federal\nCourts, 92 Harv. L. Rev. 610, 617 (1979) (prisoner $1983\nsuits in sample studied overwhelmingly in forma pauperis and\npro se); Note, Limitation of State Prisoners' Civil Rights\nSuits in the Federal Courts, 27 Catholic L. Rev. 115,\n116-17 (1977).\n17/ See generally Note, supra note 16.\n- 12 -\nCongress never authorized this flood of litigation; its\ngrowth is primarily attributable to judicial decisions. The\nlegal basis for such suits was provided primarily in the 1950's,\n1960's and 1970's, when the Court expanded the federal causes of\naction contained in surviving fragments of Reconstruction-era\nlegislation. This is true of both suits under 42 U.S.C. § 1983\n18/ and federal habeas corpus petitions by state prisoners, 19/\nwhich together account for the bulk of prisoner litigation. 20/\nThe Supreme Court, as well as the lower courts, has suffered from\nthe impact of this added caseload. In a recent term, 20 percent\nof the cases decided by the Court involved § 1983 and over\n18/ See generally Developments in the Law -- Section 1983 and\nFederalism, 90 Harv.L.Rev. 1133, 1153-56, 1169-75 (1977).\n19/ See generaly William French Smith, Proposals for Habeas\nCorpus Reform in R. Rader & P. McGuigan, eds., Criminal\nJustice Reform: A Blueprint 137, 137-40, 147-50 (1983) ;\nMayers, The Habeas Corpus Act of 1867: The Supreme Court as\nLegal Historian, 33 U. Chi. L. Rev. 31 (1965) ; Oaks, Legal\nHistory in the High Court--Habeas Corpus, 64 Mich. L. Rev.\n451 (1966).\n20/ See S. Rep. No. 226, 98th Cong., 1st Sess. 4 n.ll (1983).\nThe remedy for federal prisoners corresponding to state\nprisoner habeas corpus is the motion remedy of 28 U.S.C.\n$2255. The $2255 motion remedy is essentially a\ncodification of habeas corpus, as it applies to federal\nconvicts, and its expansion in scope through judicial\ninnovation has gone hand-in-hand with the corresponding\nexpansion of state prisoner habeas corpus. The remedy\nagainst federal officials corresponding to $1983 suits\nagainst state officials is the Bivens-type action, which was\ncreated ex nihilo in the case of Bivens V. Six Unknown Named\nAgents of the Federal Bureau of Narcotics, 403 U.S. 388\n(1971).\n- 13 -\n10 percent of all filings in the Court were state prisoner habeas\ncorpus cases. 21/\nThe tremendous growth in the number of actions under 42\nU.S.C. $1983 deserves particular note. 22/ Section 1983 was\nenacted in 1871 as a direct response to the rise of Ku Klux Klan\nterrorism in the South during Reconstruction, and the general\nunwillingness or inability of the governments in the former\nConfederate States to control this pervasive disorder. Original-\nly intended as a narrow civil remedy, § 1983 has ballooned into a\nmajor source of federal court litigation with a scope far beyond\nanything that Congress contemplated in 1871. The 1,254 pages of\nannotations under 42 U.S.C.A. § 1983 (1981) reflect the enormous\nrange of state and local activity that is now the subject of\n21 / See Justice Sandra Day O'Connor, \"Comments on the Supreme\nCourt's Workload,\" Delivered Before a Joint Meeting of the\nFellows of the American Bar Foundation and the National\nConference of Bar Presidents, New Orleans, Louisiana,\nFebruary 6, 1983, at 14 (20% of cases decided by Supreme\nCourt in the 1981 term involved § 1983) ; Justice Lewis F.\nPowell, Address Before the A.B.A. Division of Judicial\nAdministration, San Francisco, California, Aug. 9, 1982, at\n13 n. 14 (estimated 450 state prisoner habeas corpus cases\nfiled with Supreme Court in 1981 term) ; see also id. at 9\nn. 10 (\"During the 1981 Term\npetitions for certiorari\nwere filed in more than 30 cases by a single prisoner. Each\npetition\n... became a case on our docket, duplicate copies\nwere sent to each Justice, and each of us had to make a\npersonal decision as to the petition's merit.\")\n22/ In fiscal year 1960, only 280 suits were filed in federal\ncourts under all federal civil rights statutes. By 1980,\napproximately 29,000 civil rights actions were brought in\nfederal court, representing more than 16 per cent of the\ndistrict courts' workload. Most of this increase in civil\nrights litigation is due to § 1983 suits.\n- 14 -\nlitigation under § 1983. No grievance seems too trivial to\nescape translation into a $ 1983 claim. For example, the ques-\ntion whether a state official who insisted that a student cut his\nor her hair has invaded a constitutional right and is liable\nunder § 1983 has been before every federal court of appeals and\nhas drawn at least nine denials of certiorari from the Supreme\nCourt, three of them with dissenting opinions. 23/\nThe dramatic increase in § 1983 litigation is the\nresult of several decisions. First, the Court has held that\n$ 1983 applies to violations of any of the rights that have been\nincorporated into the Fourteenth Amendment, even though the\njurisdictional statute refers only to equal protection vio-\nlations. 24/ Thus, § 1983 now covers many wrongs previously\nactionable only in state tort suits. Second, the Supreme Court\nhas held that municipalities and state agencies are \"persons\"\nsubject to suit under $ 1983. 25/ Third, it has held that a\nmunicipality has no \"good faith\" defense to $ 1983 actions, where\nthe constitutional violation by its official was pursuant to an\nofficial policy or governmental custom. 26/ Finally, because\n23/ Zeller V. Donegal School Dist., 517 F.2d 600, 602-03 (3d\nCir. 1975).\n24/ 28 U.S.C. 1343 (3); Maine V. Thiboubot, 448 U.S. 1 (1980)\n25/ Monell V. Dept. of Social Services of the City of New York,\n436 U.S. 658 (1978), overruling Monroe V. Pape, 365 U.S. 167\n(1961).\n26/ Owen V. City of Independence, 445 U.S. 622 (1980).\n- 15 -\nexhaustion of state administrative remedies is not a prerequisite\nto bringing suit under § 1983, 27/ individuals and municipalities\noften are not given the chance of resolving disputes before cases\nare filed in federal court.\nIncreased litigation also is caused when constitutional\nrights are defined with a level of specificity beyond what one\nwould think could be imputed to the fundamental law of the land.\nIn the areas of obscenity and automobile searches, for example,\nupon occasion the Court drew lines SO fine that a case-by-case\ndetermination by the Court seemed to be required in every\ninstance. 28/ When the rules of decision are unclear, litigants\nhave a powerful incentive to petition for Supreme Court review.\nNow that the Court has adopted bright line rules in these areas,\nthe number of such cases coming to the Supreme Court should\ndecrease significantly. 29/\nWhile the Court has largely resolved these particular\nissues, new problems have arisen in other areas. The Court's\n27/ Patsy V. Bd. of Regents,\nU.S.\n, 102 S. Ct. 2557\n(1982).\n28/ Roth V. United States, 354 U.S. 476 (1957) ; Jacobellis V.\nOhio, 378 U.S. 184 (1964) ; Paris Adult Theatre I V. Slaton,\n413 U.S. 49, 82-83 (1973) (Brennan, J., dissenting) ; Robbins\nV. California, 453 U.S. 420 (1981).\n29/ Miller V. California, 413 U.S. 15 (1973) ; United States V.\nRoss,\nU.S.\n(1982) ; New York V. Belton, 453 U.S. 454\n(1982).\n- 16 -\nrecent decision in Solem V. Helm, 3 0/ is a good example. In that\ncase, the Supreme Court invalidated a sentence of life imprison-\nment without parole imposed on a seven-time felony convict, and\nheld broadly that sentences of imprisonment are hereafter to be\nscrutinized by the courts for proportionality under a set of\ncriteria stipulated in the Court's opinion. This decision\neffectively overruled its 1980 decision in Rummel V. Estelle, 31/\nand its 1982 decision in Hutto V. Davis, 32/ which to all appear-\nances had barred such review of prison terms. It is predictable\nthat large numbers of incorrigible offenders will now challenge\ntheir sentences in federal court, and that considerable efforts\nwill be required to elaborate on the Solem test. 33/\nThe decision in Solem is particularly disturbing in\nlight of the previous effects that resulted from corresponding\ndevelopments in the area of capital punishment. Proceeding under\nthe same banner of \"proportionality,\" the Supreme Court, since\n1971, has imposed a host of special requirements and restrictions\non the imposition of capital sentences. The over-particulariza-\ntion of Constitutional rights in that area, coupled with the\nopen-ended availability of habeas corpus and dilatory tactics by\n30/ 51 U.S.L.W. 5019 (June 28, 1983).\n31/ 445 U.S. 263 (1980).\n32/ 454 U.S. 370 (1982).\n33/ See 51 U.S.L.W. at 5029 (Burger, C.J., dissenting).\n- 17 -\ndefense attorneys in capital cases, has virtually nullified the\ncapital punishment legislation of the states. 34/ For the\nforeseeable future, it appears that capital cases will be the\nsubject of endless litigation in the state courts, the inferior\nfederal courts, and the Supreme Court itself.\nIt also appears that the Court may make its job more\nburdensome by the length of its opinions. Last term, the Court\nissued\nfull opinions, many of which were long, broad in\nscope, and heavily footnoted, and which contained an extra-\nordinary number of concurrences and dissents. The number of\nopinions per case may reflect an unavoidable division of opinion\nover the correct result in some cases. However, the number of\nlong, exhaustive opinions could be an indication that the Court\nis not resolving the minimum number of issues on the narrowest\npossible grounds. 35/\n34/ See generally William French Smith, Proposals for Habeas\nCorpus Reform in P. McGuigan and R. Rader, eds., Criminal\nJustice Reform: A Blueprint 137, 145-46 (1983) ; Statement\nof Justice Lewis F. Powell Before the Eleventh Circuit\nConference in Savannah, Georgia, May 8-10, 1983, at 9-14.\n35/ For the view of a state justice on how a court can make its\njob easier without decreasing its docket, see Douglas, How\nto Write a Concise Opinion, 22 Judges' Journal 4, Spring\n1983.\n- 18 -\nB.\nCongressional and Executive Restraint\nAs the federal government has assumed a greater role in\nthe economic and social life of the nation, the function and\nauthority of the federal courts has also greatly expanded. The\ncourts have been charged with the interpretation and implementa-\ntion of a plethora of new statutes and regulations. In enacting\nmany of these initiatives, and particularly the economic regu-\nlatory statutes passed over the last dozen years, Congress has\nunnecessarily encouraged litigation and, in effect, has left\ncritical policy decisions for resolution by the courts.\nThe most fundamental objections to this trend reflect\nconcerns of federalism and the separation of powers; the in-\ncreased power of the federal judiciary is necessarily at the\nexpense of the functions of the state judiciaries and the Consti-\ntutional prerogatives of the political branches of government.\nThe caseload problem provides additional support for a cautious\nattitude by Congress and the Executive toward proposals to\nenlarge the role of the courts.\nIf all federal statutes were precise and unambiguous,\nand judicial review of their implementation were narrowly circum-\nscribed, the resulting role and workload of the courts would be\nless significant. Under many federal statutes, however, the\nsubstantive standards or standards of review (or both) are\n- 19 -\nambiguous or inconsistent. 36/ This thrusts the courts into a\npolicy-making role and ensures that abundant opportunities for\nlitigation will arise in the administration of the affected\nprograms.\nThe adverse consequences of effectively delegating\nlegislative functions to the courts through vague or open-ended\nstatutes are frequently compounded by legislative decisions to\ndelegate enforcement functions to unaccountable private inter-\nests. 37/ This tendency is reflected both in broad statutory\ndefinitions of the classes of persons given standing to challenge\nadministrative action and in ever-broader statutory authorization\nof awards of attorney's fees against the government. 38/ Under the\n36/ Examples include the Freedom of Information Act, 5 U.S.C. §\n552; Clean Air Act, 42 U.S.C. §§ 7401 et seq.; Surface\nMining Control and Reclamation Act of 1977, 30 U.S.C. §§\n1201 et seq.; Endangered Species Act, 16 U.S.C. §§ 1531 et\nseq.; Toxic Substances Control Act, 15 U.S.C. §§ 2601 et\nseq.; Federal Insecticide, Fungicide, and Rodenticide Act, 7\nU.S.C. §§ 136 et seq.; Occupational Safety and Health Act,\n29 U.S.C. §§ 651 et seq.; and Employee Retirement Income\nSecurity Act of 1974, 29 U.S.C. §§ 1001 et seq.\n37/ Private parties are currently empowered to enforce a broad\nrange of regulatory statutes including the Clean Air Act, 42\nU.S.C. § 7604; Endangered Species Act, 16 U.S.C. § 1540 (g)\nFederal Water Pollution Control Act, 33 U.S.C. § 1365;\nMarine Protection, Research and Sanctuaries Act of 1972, 33\nU.S.C. § 1415 (g) Noise Control Act of 1972, 42 U.S.C. §\n4911; and Toxic Substances Control Act, 15 U.S.C. § 2619.\n38/ Recent statutes authorizing awards of attorney's fees\nagainst the government that have encouraged large numbers of\ncases include the Clean Air Act, 42 U.S.C. §§ 7604 (d),\n(Footnote Continued)\n- 20 -\ntraditional American rule, each party bears its own costs of\nlitigation. The statutory departures from this rule are typical-\nly one-sided. They frequently result in the routine award of\nfees to a party prevailing against the government. They do not,\nhowever, provide any comparable authorization for the government\nto recover the full costs of a suit it has defended at the\npublic's expense where the outcome of the litigation demonstrates\nthat the suit was unwarranted. With the incentives structured in\nthis manner, it is inevitable that such suits will proliferate.\nConsidering the effects of broad judicial review in\nmany areas and the workload crisis in the court system, proposals\nto create judicial review in areas in which it does not currently\nexist should be approached with caution. In the area of veterans\nbenefits determinations, for example, judicial review is now\ngenerally barred by statute. 39/ The Senate has passed legis-\nlation which would create judicial review in that area. 40/ When\nthe courts are struggling with their current caseloads, one may\nquestion the wisdom of a change the immediate effect of which\n(Footnote Continued)\n7607 (f), 7622 (b) (2) (B) and (e) (2) i Civil Rights Attorney\nFees Awards Act of 1976, 42 U.S.C. § 1988; and Freedom of\nInformation act, 5 U.S.C. § 522 (a) (4) (E).\n39/ See 38 U.S.C. $ 211 (a).\n40/ S. 349 of the 97th Congress.\n- 21 -\nwould be several thousand additional cases a year in the district\ncourts. 41/\nProposals to increase the scope of judicial review in\nareas in which it currently exists in a more limited form are\nanother type of change that merits careful scrutiny in light of\nthese concerns. The proposal to eliminate the presumption of\nvalidity for administrative action (the \"Bumpers Amendment\")\nprovides an example. 42/ If parties challenging administrative\naction have the benefit of review standards that afford them a\ngreater likelihood of success, such challenges will necessarily\nbe brought with greater frequency.\nIII.\nLegislative Reforms\nIn the long run, judicial restraint and the enactment\nof legislation that neither encourages litigation nor defers\nlegislative decisions to the courts is the surest way to bring\nthe caseload explosion under control. However, there are immedi-\nate steps that could be taken to reduce federal caseloads.\nSeveral reform proposals now before Congress would go far toward\n41/ See S. Rep. No. 466, 97th Cong., 2d Sess. 141-43 (1982)\n(Department of Justice caseload projection).\n42/ See generally Statement of Assistant Attorney General\nJonathan C. Rose on S. 1080 Before the Subcomm. on\nAdministrative Practice and Procedure of the Senate Comm. on\nthe Judiciary (Sept. 21, 1983).\n- 22 -\nmeeting the workload problem faced by the Supreme Court and the\nrest of the federal judiciary.\nA.\nSupreme Court Mandatory Appeals\nAs stated in our letter of September 8 on H.R. 1968,\nthe proposal to make the Supreme Court's appellate jurisdiction\nfully discretionary, except for appeals from three-judge district\ncourts, should be enacted immediately. 43/ In the 1982 term, for\nexample, 21 appeals set for oral argument would have been eligi-\nble for review only by certiorari under the reform. 44/ There is\nno means of determining precisely how many of these cases would\nhave been accepted for discretionary review. However, the\nJustices have stated that they often find it necessary to call\nfor full briefing and oral argument in mandatory appeal cases of\nno general public importance on account of the complexity of the\nlegal questions presented. 45/ Since such cases would simply be\n43/ See Letter of Assistant Attorney General Robert A. McConnell\nto Honorable Peter W. Rodino Concerning H.R. 1968 (Sept. 8,\n1983).\n44/ The figure of 21 does not include four appeals from\nthree-judge district courts, which would not be affected by\nthe reform of H.R. 1968. The remaining cases set for\nargument in the term were 154 certiorari cases and 3\noriginal jurisdiction cases.\n45/ See Mandatory Appellate Jurisdiction of the Supreme Court --\nAbolition of Civil Priorities -- Juror Rights, Hearing on\nH.R. 2406, H.R. 4395 and H.R. 4396 Before the Subcomm. on\nCourts, Civil Liberties and the Administration of Justice of\nthe House Comm. on the Judiciary, 97th Cong., 1st Sess. 22\n(Footnote Continued)\n- 23 -\ndenied review if presented on certiorari, it is clear that the\nreform would be of significant value in reducing the Supreme\nCourt's workload, though not by itself sufficient to resolve the\nworkload problem. 46/\nB. Diversity Jurisdiction\nThe Department of Justice has consistently supported\nproposals to limit or abolish diversity jurisdiction, 47/ which\nin the past year burdened the federal district courts with over\n57,000 state law cases. Diversity cases account for about\none-quarter of all civil filings, 40 percent of all civil trials,\nand 60 percent of all civil jury trials in the federal courts.\nThe general elimination of diversity jurisdiction would not only\nrelieve the district courts of this burden, but would also\nproduce a large reduction in the workload of the courts of\nappeals -- about 15 percent of all appeals of district court\ndecisions arise in diversity cases.\n(Footnote Continued)\n(1982) (letter of the Justices to Chairman Kastenmeier).\n46/ See Justice Sandra Day O'Connor \"Comments on the Supreme\nCourt's Workload,' Delivered Before a Joint Meeting of the\nFellows of the American Bar Foundation and the National\nConference of Bar Presidents, New Orleans, Louisiana,\nFebruary 6, 1983, at 12.\n47/ See generally Diversity of Citizenship Jurisdiction:\nHearing on H.R. 6691 Before the Subcomm. on Courts, Civil\nLiberties and the Administration of Justice of the House\nComm. on the Judiciary, 97th Cong., 2d Sess. 7-12 (1982)\n(testimony of Assistant Attorney General Jonathan C. Rose).\n- 24 -\nThe House of Representatives has passed a bill to\nabolish diversity jurisdiction in the past. Last year, this\nCommittee again reported the proposal favorably. 48/ Unfortu-\nnately, this important reform has not been viewed favorably by\nthe Senate. I should note, Mr. Chairman, that you recently\nintroduced a series of bills that would limit diversity jurisdic-\ntion in different ways. The Department continues to support the\ncomplete abolition of diversity jurisdiction as the best ap-\nproach. While we have not yet taken formal positions on the\nspecific proposals in these bills, we are encouraged by the\npractical and flexible approach they represent, and hope that\nthey may provide the basis for a generally acceptable compromise.\nC. Habeas Corpus\nThere is a generally recognized need for reform in the\nsystem of federal collateral remedies, including federal habeas\ncorpus for state prisoners, by which the federal courts effec-\ntively engage in appellate review of state criminal cases. 49/\n48/ See 128 Cong. Rec. H 6023 (daily ed. July 29, 1983) (remarks\nof Rep. Kastenmeier).\n49/ See, e.g., Rose V. Lundy, 455 U.S. 509, 546-47 (1982)\n(Stevens, J., dissenting) ; Schneckloth V. Bustamonte, 412\nU.S. 218, 250 (1973) (concurring opinion of Powell, J.,\njoined by Burger, C.J., and Rehnquist, J.); Chief Justice\nWarren E. Burger, 1981 Year-End Report on the Judiciary 21;\nSandra Day O'Connor, Trends in the Relationship Between the\nFederal and State Courts from the Perspective of a State\nCourt Judge, 22 William & Mary L. Rev. 801, 914-15 (1981) ;\n(Footnote Continued)\n- 25 -\nThe Administration's habeas corpus reform proposals were con-\nsidered expeditiously in the Senate following their transmittal\nin March of 1982, and they have been reported favorably by the\nSenate Judiciary Committee in this Congress by a vote of 12 to 5. 50/\nThere have, however, been no hearings or other action on the\nproposals in this Subcommittee in the twenty months since their\ntransmittal, though a number of the Subcommittee's members have\nsponsored bills incorporating them. 51/ We strongly recommend\nthat the Subcommittee act promptly on our proposals in the next\nsession of Congress.\n(Footnote Continued)\nJustice Lewis F. Powell, supra note 21, at 9-13; Interview\nwith Justice Potter Stewart, 14 The Third Branch 1 (Jan.\n1982) ; Judge Carl McGowan, The View from an Inferior Court,\n19 San Diego L. Rev. 659, 667-68 (1982) ; Judge Henry\nFriendly, Is Innocence Irrelevant? Collateral Attack on\nCriminal Judgments, 38 U. Chi. L. Rev. 142 (1970) ; The\nHabeas Corpus Reform Act of 1982: Hearing on S. 2216 Before\nthe Senate Comm. on the Judiciary, 97th Cong., 2d Sess.\n223-24, 231-40 (1982) ; see generally S. Rep. No. 226, 98th\nCong., 1st Sess. 3-6 (1983).\n50/ See S. Rep. No. 226, 98th Cong., 1st Sess. 31 (1983). The\nSenate bill is S. 1763; the corresponding House bill in the\ncurrent Congress is H.R. 2238. See generally the cited\nSenate Committee Report, supra; The Habeas Corpus Reform Act\nof 1982: Hearing on S. 2216 Before the Senate Comm. on the\nJudiciary, 97th Cong., 2d Sess. 16-107 (1982)\n(Administration statements and testimony); William French\nSmith, supra note 19.\n51/ See S. Rep. No. 226, 98th Cong., 1st Sess. 2 nn.3-4 (1983)\n- 26 -\nD.\nAdministrative Alternatives to Litigation\nIn certain areas, the replacement or supplementation of\nexisting judicial remedies with more efficient administrative\nmechanisms is a promising reform option. 52/ We have supported a\ngeneral authorization of the imposition of civil penalties for\nfraud under government funding and assistance programs by admin-\nistrative process. 53/ This reform would reduce the litigation\nburden on both the courts and the government while making the\nadministration of these programs and the punishment of fraudulent\npractices more effective.\nE. Other Reforms\nThere are various other possibilities that may be\nconsidered in addressing the workload problem of the courts.\n52/ See generally Recommendations and Reports of the\nAdministrative Conference of the United States 23-26,\n203-375 (1979) (regarding monetary penalties for regulatory\nviolations) ; Erwin N. Griswold, \"Cutting the Cloak to Fit\nthe Cloth: An Approach to Problems in the Federal Courts,\"\nThe Brendan F. Brown Lecture Delivered at Catholic U. of\nAmerica Law School, Washington, D.C., March 23, 1983, at 14\n(regarding employers' liability).\n53/ See Program Fraud Civil Penalties Act: Hearing on S. 1780\nBefore the Senate Comm. on Governmental Affairs, 97th Cong.,\n2d Sess. 11-29 (1982) (testimony of Assistant Attorney\nGeneral J. paul McGrath).\n- 27 -\nWhile we have not yet taken a position on specific reforms\ndiscussed below, we believe that they merit serious study and\nconsideration.\nIn areas in which there is a particularly great need\nfor technical expertise or for national uniformity and certainty\nin the law, there may be value in increased use of appellate\nforums with exclusive nationwide jurisdiction. The principal\nexisting example is the Federal Circuit Court of Appeals, which\nhas exclusive jurisdiction over appeals in such areas as govern-\nment contracts, international trade, and patents. 54/ This type\nof reform directly reduces the workload of the regional appellate\ncourts by transferring certain classes of cases to national\nforums. Since a substantial part of the Supreme Court's work\nconsists of resolving differences that arise among the various\ncircuits, consolidating appeals in a single forum tends to reduce\nthe Supreme Court's workload as well. 55/\n54/ This approach is exemplified to a more limited extent by the\nDistrict of Columbia Circuit Court of Appeals. The D.C.\nCircuit has concurrent jurisdiction with the regional\nappellate courts in review of most types of administrative\naction, but in some areas its jurisdiction is exclusive.\nThe Temporary Emergency Court of Appeals, a specialized\ncourt staffed by judges from the regular circuit courts,\nillustrates a different approach to consolidated appellate\nreview.\n55/ Justice Sandra Day O'Connor, \"Comments on the Supreme\nCourt's Workload,\" Delivered Before a Joint Meeting of the\nFellows of the American Bar Foundation and the National\nConference of Bar Presidents, New Orleans, Louisiana,\nFebruary 6, 1983, at 12-13; Remarks of Justice William J.\n(Footnote Continued)\n- 28 -\nForums with nationwide jurisdiction also currently\nexist at the trial level -- the Court of International Trade, the\nTax Court and the Claims Court. Trial courts of this type also\nreduce the workload of the regionally-based courts by handling\ncertain classes of cases that would otherwise have to be adju-\ndicated in the district courts. If a trial court of nationwide\njurisdiction has exclusive jurisdiction in its subject matter\narea and review of its decisions is limited to a single appellate\ncourt, economies result for the regional circuit courts and the\nSupreme Court as well.\nThere may be additional areas in which creation of\ncourts with nationwide jurisdiction in defined subject matter\nareas would be beneficial. For example, proposals have been\nadvanced to create an Article I court to assume the reviewing\nfunction in Social Security cases, which is presently carried out\nin the district courts. 56/ While we have not yet taken a\nposition on this proposal, we view the idea with great interest. 57/\n(Footnote Continued)\nBrennan at the Third Circuit Judicial Conference,\nPhiladelphia, Pennsylvania, Sept. 9, 1982, at 6-7; Interview\nwith Chief Judge Howard T. Markey of the Federal Circuit\nCourt of Appeals, 15 The Third Branch 1, 7 (Oct. 1983) (no\npetitions for certiorari granted by Supreme Court to review\nFederal Circuit decisions in first year of its existence).\n56/ See, e.g., H.R. 3865 and H.R. 5700 of the 97th Congress.\n57/ In 1981, the number of Social Security cases in the district\ncourt was 9,000; in 1982 it was 13,000. Extrapolating from\n(Footnote Continued)\n- 29 -\nF. Omnibus Judgeships.\nWe have suggested a number of measures to decrease the\nnumber of cases filed in the federal court system, and thereby\nreduce the pressure on the Supreme Court from below. However,\njust as the Supreme Court may need some help until a broad-based\nprogram of judicial reform and caseload reduction is enacted, SO\ndo the lower federal courts. Their caseload increases have been\neven more striking than those recently faced by the Supreme\nCourt. As long as the caseloads continue to grow, and as long as\nthe jurisdiction of the courts and the incentives to litigate\nremain the same, the need for new district and circuit judges\nmust be met.\nEvery two years, the Judicial Conference of the United\nStates conducts an exhaustive study of the need for new\njudgeships. The Department's experience has been that both the\nprocedures and the recommendations of the Judicial Conference are\nsound. Since the last judgeship bill was passed in 1978, the\nJudicial Conference has twice identified the new positions that\nare needed. While the Senate has incorporated the Judicial\nConference's 1982 recommendations in S. 1013, the bankruptcy\ncourts bill approved by the Senate last April, the House has\n(Footnote Continued)\nthe figures for the first nine months of the present year,\nit appears that the corresponding figure for 1983 will be\nabout 24,000.\n- 30 -\ntaken no action. We strongly urge that action be taken in the\nnear future to create these positions.\nIV.\nThe Intercircuit Tribunal Proposal\nA final legislative option to reduce the workload of\nthe Supreme Court that has received considerable public and\nCongressional attention in the past year is the proposal to\nprovide the Court with an adjunct tribunal to which cases could\nbe referred for a nationally binding decision.\nA.\nGeneral Considerations\nNear the start of this year, Chief Justice Burger\nadvanced the proposal to create an Intercircuit Tribunal as an\nimmediate response to the workload problem of the Supreme Court.\nThis proposal has since been introduced in the House of Represen-\ntatives as H.R. 1970 and has been reported by the Subcommittee on\nCourts of the Senate Judiciary Committee as Title VI of S. 645.\nThe Intercircuit Tribunal proposal would provide the\nSupreme Court with an adjunct tribunal to which cases could be\nreferred for a nationally binding decision. All versions of the\nproposal have had certain common features. The Tribunal would\nautomatically go out of existence at the end of a certain period\nof time unless renewed or continued by new legislation. The\nTribunal would be composed of sitting circuit judges. The Supreme\n- 31 -\nCourt could refer any type of case to the Tribunal for a nation-\nally binding decision. The decisions of the Tribunal would be\nreviewable by certiorari in the Supreme Court.\nFor reasons to be discussed below, we believe that\ncreation of a properly designed Tribunal of this type would have\nthe intended effect of reducing the Supreme Court's workload.\nThe initial question, then, is whether other policy concerns\noutweigh the value of the Tribunal in achieving this objective.\nWe would see such overriding concerns if the proposal\nwere for a permanent Tribunal. The basic objection to a perma-\nnent Tribunal is that it does not go to the root of the problem.\nNo long-term solution to the excessive workload of the Supreme\nCourt can be achieved unless steps are also taken to decrease the\nintake of cases at the lower levels of the judiciary. There are,\nmoreover, other important grounds supporting a broader approach\nto the problem.\nThe recent history of the federal judiciary has been\none of explosive growth. The external manifestations are appar-\nent to any observer of the judicial system -- the continued rise\nin the number of judgeships, which invariably lags behind the\nstill more rapid rise in caseloads; the increased reliance on\nadjuncts and other support personnel; and the development of ever\nmore elaborate administrative and management apparatus in the\njudicial branch. These obvious external changes are accompanied\n- 32 -\nby more subtle yet profoundly important qualitative changes in\nthe exercise of the judicial function. The traditional values of\nreflection and deliberation, articulation of the grounds of\ndecision, and personal decision-making by judges have begun to\ngive way to the need to move cases through the system as quickly\nas possible. The quality of judges, no less than the quality of\ntheir decisions, is threatened by this development. If the\njudiciary evolves into another large bureaucracy, the prospect of\nservice on the federal bench will lose its luster. The difficul-\nty of interesting attorneys of the highest caliber in such\nservice would increase accordingly.\nWe should not accept the indefinite continuation of\nthis trend, contenting ourselves with ad hoc structural reforms\naddressing its symptoms. We have accordingly opposed, and\ncontinue to oppose, the creation of a National Court of Appeals\nas a permanent fixture of the federal judicial system. One\nconcern raised by any proposal to create a permanent Tribunal is\nthat it would accelerate the bureaucratization of the judiciary.\nHowever, the largest concern raised by the proposal to create\nsuch a court is that it would have precisely the effects its\nproponents have claimed for it -- its enlargement of the appel-\nlate capacity at the national level would accommodate the expan-\nsion of the judicial function that has occurred as far, and would\nopen the way for further expansion in the future. The concerns\nraised by the continuation of this trend include both the de-\nstruction of the traditional character of the judiciary and basic\n- 33 -\nconcerns for federalism and the separation of powers. As noted\nearlier, the extension of the federal courts' role is necessarily\nat the expense of the functions of the state judiciaries and the\nrole of the political branches in the Constitution's plan of\ngovernment.\nWhile the foregoing concerns are sufficient to warrant\nopposition to the creation of a permanent national court or\ntribunal attached to the Supreme Court, we do not see objections\nof comparable force to the temporary creation of an Intercircuit\nTribunal as an immediate response to the workload problem of the\nSupreme Court. A temporary Tribunal would provide time for the\nenactment and implementation of a broad based response to the\njudicial workload problem through the measures discussed earlier\nin my testimony and other reforms that may be developed in future\nstudy of the problem by Congress, the Department of Justice and\nthe judiciary. The objections and concerns noted above apply\nwith less force to a strictly provisional measure, and we believe\nthat they do not outweigh the likely value of a temporary Tri-\nbunal in meeting the current workload problem of the Supreme\nCourt. Our conception of the Tribunal as a temporary measure is\nconsistent with that expressed in the statement of the Chief\nJustice, who also characterized an intercircuit panel or tribunal\n- 34 -\nas an emergency measure that would buy time for the development\nof long-term solutions. 58/\nB.\nThe Character of the Tribunal\nOur support for the creation of a temporary Intercir-\ncuit Tribunal is conditioned on certain understandings concerning\nthe structure and constitution of the Tribunal, which go to its\nbasic character:\n1. A Temporary Tribunal. The Tribunal must be limited\nin duration. The Tribunal should not become an entrenched\ninstitution or be regarded as a stepping-stone to the inevitable\nestablishment of a permanent National Court of Appeals. Congress\nshould pursue aggressively other reforms addressing the caseload\nproblem; it should review frequently the continued need for the\nTribunal; and it should terminate the Tribunal as soon as other\nmeasures have reduced the Supreme Court's docket to manageable\ndimensions. For these purposes the basic five-year period\nproposed in the pending bills is more than adequate, and might\nwell be reduced. We believe that a three-year period would be\nmore appropriate. 59/ Additional grounds for this conclusion\n58/ See Annual Report on the State of the Judiciary 8-11 (Feb.\n6, 1983).\n59/ H.R. 1970 and the original version of the Senate proposal\nprovide for a flat five-year period. The version voted out\n(Footnote Continued)\n- 35 -\nappear in the analysis of the design of the Tribunal later in my\ntestimony.\n2. A Unitary Tribunal. Both H.R. 1970 and the original\nSenate version of the Intercircuit Tribunal proposal contemplated\na Tribunal consisting of a large pool of judges sitting in\nshifting panels. We fully agree with the predominant view of the\nparticipants in the Congressional hearings on the proposal that\nthis structure would be unsound. The Tribunal should consist of\na single panel hearing all cases en banc, as provided in the\ncurrent Senate version of the proposal. 60/ A multi-panel\nTribunal would simply generate new conflicts and instabilities,\nand would be inconsistent with the proposal's objective of\nachieving decisional consistency and minimizing the time the\nSupreme Court must invest in resolving differences among lower\n(Footnote Continued)\nby the Senate Courts Subcommittee provides for a five-year\nperiod commencing with the initial reference of a case to\nthe Tribunal, and contemplates that the Tribunal would\ncontinue beyond the end of this five-year period for the\ntime necessary to dispose of pending cases. We would have\nno objection to the exclusion of start-up time and the\ncontinuation to finish pending cases proposed in the current\nSenate version SO long as the basic period were three years\nrather than five.\n60/ The Senate proposal qualifies the single-panel structure of\nthe Tribunal slightly be providing that it is to include\nfour alternate judges as well as a regular panel of nine\njudges. This approach has been endorsed by the Chief\nJustice. See Remarks of Chief Justice Warren E. Burger at\nthe 60th Annual Meeting of the American Law Institute 5 (May\n17, 1983). We would not oppose this qualification so long\nas it were made clear that participation by alternates would\nbe limited to situations in which regular judges of the\npanel were disqualified or unavoidably absent.\n- 36 -\ncourts. Moreover, broad participation by circuit judges in the\nTribunal's work is not inherently desirable. Making nationally\nbinding decisions in every area of federal law should not be the\noccasional avocation of a large part of the federal appellate\nbench, but should be limited to those judges who are most highly\nqualified to assume this momentous responsibility.\n3. Selection by the Justices. H.R. 1970 and the\noriginal Senate version of the proposal provided for selection of\nthe Intercircuit Tribunal by the judicial councils of the various\ncircuits. We are in full agreement with the general view of the\nparticipants in the hearings on the proposal that it would be\nunsound to involve the judges of the inferior courts in the\nselection of the Tribunal. It has been aptly observed that\nelection of judges to a higher position by their peers is not\nlikely to be a happy process. Nor is it apparent how selection\nof the Tribunal by the circuit and district judges comprising the\ncircuit councils would advance the proposal's objectives.\nGiven the relationship between the Tribunal and the\nSupreme Court contemplated by the proposal, there is obvious\nvalue in utilizing a selection procedure which ensures that the\njudges on the Tribunal enjoy the confidence of the Supreme Court.\nThe extent to which the creation of the Tribunal achieves its\nessential purpose -- reducing the workload of the Supreme Court\n-- will depend on the willingness of the Court to refer cases to\nthe Tribunal and to let its decisions stand. The provision of\n- 37 -\nthe current Senate version of the proposal for assignment of\njudges to the Tribunal by the Supreme Court ensures that the\nTribunal will enjoy the confidence of the Court and constitutes\nan appropriate approach to the selection of a temporary Intercir-\ncuit Tribunal. 61/\nC.\nProbable Effects of the Tribunal\n1. Effects on the Work of the Supreme Court. We think\nthat reference of cases to the Tribunal would have the intended\neffect of reducing the Supreme Court's workload. We are not\npersuaded by certain objections that have been raised to this\nconclusion.\nIt has been argued that the option of referring cases\nto the Tribunal would complicate the process of screening appli-\ncations for review in the Supreme Court. It is not apparent,\nhowever, that choice among three options (grant, deny or refer)\nis substantially more difficult or time-consuming than choice\n61/ An alternative possibility suggested in the course of the\nhearings on the proposal -- selection by the Chief Justice\nsubject to confirmation by the Supreme Court -- would be\nequally appropriate.\nOur endorsement of selection of the Tribunal by the Justices\nof the Supreme Court is contingent on its provisional\ncharacter. If a long-term or permanent version of the\nTribunal is proposed at a later point, we would reserve the\nright to insist that its members be chosen by the President\nsubject to Senate confirmation.\n- 38 -\nbetween two options (grant or deny). The ability to refer cases\nto the Tribunal could actually smooth the screening process by\nproviding a third option for cases that are marginal candidates\nfor Supreme Court review and currently occasion disagreement\namong the Justices.\nIt has also been argued that the economies resulting\nfrom reference of cases to the Tribunal would be offset by the\nneed to monitor the decisions of the Tribunal and to grant review\nof its decisions. It is unlikely, however, that the Supreme\nCourt would frequently grant certiorari in cases coming back to\nit from the Tribunal, since these would be cases the Justices had\nalready decided did not require their personal attention.\nThe force of both of these objections is further\nreduced by the discretionary nature of the reference jurisdiction\nin the pending proposals. If the Justices were to find that\nreferring certain types of cases -- or any cases -- to the\nTribunal was counterproductive in terms of reducing their work-\nload, they could simply refrain from making such referrals.\nA further objection is that creation of the Tribunal\nwould result in an increase in the number of applications to the\nSupreme Court for review, since the likelihood of obtaining\nfurther review would increase. It is not apparent that any large\neffect of this sort would occur, because the odds that any\nparticular case would be accepted for review -- and particularly\n- 39 -\nthe marginal petitions that would not otherwise have been filed\n-- would still be small. Nevertheless, even if this prediction\nis correct, it does not substantially reduce the value of the\nreform. Since the Supreme Court's jurisdiction is predominantly\ndiscretionary and would be almost wholly discretionary with\nthe enactment of H.R. 1968 -- a larger number of applications\nwould not mean that more cases would have to be accepted for\nreview. Some increase in screening work would result, but\nscreening petitions takes only a limited part of the Justices'\ntime. Moreover, the work involved in screening petitions can be\ndelegated to support staff to a much greater extent than the work\ninvolved in deciding cases on the merits.\nA final objection -- which goes more to the issue of\nquality than quantity -- is that creation of an Intercircuit\nTribunal would sacrifice an advantage of the current system under\nwhich important issues have often been examined intensively by a\nnumber of lower courts by the the time they are presented to the\nSupreme Court for a final decision. However, this \"simmering\"\nprocess would not be ended by creation of the Tribunal. Refer-\nence to the Tribunal would be in the discretion of the Supreme\nCourt; if the Court believed that an issue was not ripe for a\nnationally uniform decision, it would retain the option of\ndenying review rather than referring the case to the Tribunal for\na premature decision. Similarly, under the proposals, the\nTribunal itself would have the option of denying review on this\nground unless directed to decide a case by the Supreme Court.\n- 40 -\n2. Effects on Government Litigation. Adoption of the\nIntercircuit Tribunal proposal would probably cause some increase\nin the workload of the litigating divisions of the Department of\nJustice and a substantial increase in the workload of the Solici-\ntor General's office. However, we do not foresee any substantial\nadverse impact on our representation of the government. A posi-\ntive contribution of the Tribunal to government litigation is\nthat it will enable us to seek review of some additional appel-\nlate decisions we consider erroneous, where we currently would\nnot seek review because of the Supreme Court's limited capacity. 62/\nD. Questions of Design\nMy final remarks address some specific concerns over\nthe design of the Intercircuit Tribunal:\n1. Terms of Service on the Tribunal. At the hearings\non the Intercircuit Tribunal proposal, authorities whose views\nmerit respect expressed conflicting views concerning the proper\nlength of terms of service on the Tribunal. There was support\nboth for assigning judges to the Tribunal for the full period for\n62/ See generally Griswold, Rationing Justice -- The Supreme\nCourt's Caseload and What the Court Does Not Do, 60 Cornell\nL. Rev. 335, 341-44 (1975).\n- 41 -\nwhich it is established and for the alternative of having judges\nserve on the Tribunal for three-year staggered terms. 63/\nEach of these approaches offers certain advantages and\ndisadvantages. A fully stable composition for the Tribunal would\nproduce the greatest degree of consistency and predictability in\nits decisions. This would minimize the incentive for litigants\nto pursue appeals in the hope that an earlier adverse precedent\nof the Tribunal will be distinguished or limited in a later case.\nConversely, shorter terms of service would enable the\nSupreme Court to assess the performance of the various judges on\nthe Tribunal at reasonable intervals and to make appropriate\ndecisions concerning each judge's suitability for continued\nservice. This approach does raise larger concerns over potential\ninstability in the Tribunal's case law resulting from changes in\nits composition. However, this concern would be minimized if the\nSupreme Court were to reappoint the same judges to successive\nterms on the Tribunal unless some reason appeared for replacing a\nparticular judge. 64/\n63, / Compare Testimony of A. Leo Levin on S. 645 Before the\nSubcomm. on Courts of the Senate Comm. on the Judiciary\n17-18 (March 11, 1983) with Statement of Daniel J. Meador on\nS. 645 Before the Subcomm. on Courts of the Senate Comm. on\nthe Judiciary 6, 8 (April 8, 1983).\n64/ While we would expect that the Supreme Court will give due\nweight to the need for stability and continuity in the\nTribunal's composition, we would not favor placing any\n(Footnote Continued)\n- 42 -\nAn approach that combines the advantages and avoids the\ndisadvantages of the preceding options would be to reduce the\nperiod for which the Tribunal is established from five years to\nthree, as suggested earlier, and to provide that judges are to\nserve on the Tribunal for the full period. This would result in\na temporary Tribunal with a stable composition, minimizing\nconcerns over unpredictability or inconsistency in the Tribunal's\ndecisions. If the Tribunal were allowed to lapse at the end of\nthe initial three-year period, no further questions concerning\nservice on it would be presented. If it proved necessary to\ncontinue the Tribunal beyond the initial period, the suitability\nof the judges on it for further service could be considered at\nthat point.\n2. Judges Eligible for Assignment to the Tribunal. We\nthink that the pending bills' unrestricted authorization for the\nassignment of senior judges to the Tribunal merits further\nconsideration. A Tribunal composed largely or predominantly of\nsenior judges could well encounter public image problems. While\nthere are many highly capable senior judges who might be con-\nsidered for assignment to the Tribunal, the decision to assume\nsenior status usually reflects a need or desire to carry some-\nthing less than the full workload of an active judge. Since\nsenior judges do not normally participate in the en banc\n(Footnote Continued)\nformal constraints on the Court's ability to replace a judge\non the Tribunal.\n- 43 -\ndecisions of the circuits, a Tribunal with a heavy concentration\nof senior judges would be less in touch with the current develop-\nment of federal law in the courts of appeals than a Tribunal in\nwhich active judges predominate. It seems desirable for these\nreasons to impose some limit on the number of senior judges who\ncould serve. Our specific recommendation would be to provide\nthat a single-panel Tribunal of nine judges must include at least\nsix judges in active service.\n3. Other Questions. Three final issues merit brief\ndiscussion. First, following a suggestion of the Chief\nJustice, 65/ the current Senate version of the proposal provides\nthat the Tribunal will share a clerk's office and other support\nstaff and facilities with the Federal Circuit Court of Appeals.\nThis is a sensible approach which would decrease start-up time,\nreduce the cost of operating the Tribunal, and minimize dis-\nruption among support personnel when the Tribunal is terminated.\nSecond, the pending bills make no provision for removal\nof judges from the Tribunal in case of incapacity or misconduct.\nThis omission could be easily remedied by providing that the\nSupreme Court may remove a judge from the Tribunal.\n65/ See Annual Report on the State of the Judiciary 9-10 (Feb.\n6, 1983).\n- 44 -\nThird, the legislative proposals contemplate that the\nTribunal will devise and promulgate rules of procedure for its\nproceedings. Considering the close relationship of the Supreme\nCourt and the Tribunal and the fact that the Tribunal's caseload\nwill consist entirely of cases referred to it by the Supreme\nCourt, it may be useful to provide that the Supreme Court may\nmodify or repeal rules adopted by the Tribunal and may issue\nadditional rules governing the Tribunal's proceedings and activ-\nities.\n*\n*\n*\nTo summarize, while the volume of federal government\nlitigation in the Supreme Court has not increased in the past ten\nyears, the tremendous growth of litigation in the federal courts\nover the same period has resulted in a workload problem in the\nCourt. A response that only addressed and temporarily accom-\nmodated the effects of this litigation explosion would be inade-\nquate. It is essential that the growth in the caseload of the\nSupreme Court and the lower federal courts be addressed by a\nbroad based set of reforms. Generally, the courts must exercise\njudicial restraint and the Congress must act in a manner that\nwill decrease rather than increase the incentives to litigation.\nSpecific measures that should be adopted in response to\nthe caseload problem include completing the evolution of the\nSupreme Court's jurisdiction toward discretionary review,\n- 45 -\nlimiting or eliminating diversity jurisdiction, addressing the\nproblem of prisoner petitions, and developing, in appropriate\nareas, administrative alternatives to litigation. While we\nreject the permanent establishment of an adjunct tribunal to the\nSupreme Court as a part of this general response, we think that\ncreation of such a tribunal is desirable as a temporary measure\naddressing an immediate problem.\nI would be pleased to answer any questions the Commit-\ntee may have."
}