Back to Business - and Lots of It

By Bennett H. Beach

The Supreme Court returns to a docket that is both hot and heavy

As usual on the first Monday of October, the Chief Justice, his white leonine mane flowing behind him, took the center chair on the bench and announced the court's opening case (Colorado vs. New Mexico, a water-rights dispute). To the Chief Justice's right was the senior Justice, William Brennan, 76, back from his Nantucket summer home, his lively eyes on full alert behind his spectacles. The court's junior member, Sandra Day O'Connor, fresh from an African safari vacation, looked stern as a schoolmarm as the first hopeful lawyer began to argue his case. The 1982-83 term of the U.S. Supreme Court was under way, and for all the normality of its start, the year promises a work load that will leave the Justices physically and mentally spent come the usual Fourth of July adjournment.

The docket now facing the Justices is not only the heaviest ever but one of the hottest in recent years. Among the more emotional issues is abortion and whether states or localities may restrict it by requiring, for example, parental consent for minors. The Justices will also rule on the constitutionality of a Minnesota statute that allows parents a tax deduction for their children's private-school tuition. Then there is the so-called Betamax case: Are U.S. copyright laws violated when video-tape-machine owners record TV shows at home? A critical case tests the legality of the legislative veto, a device in some 200 laws that allows Congress to disapprove regulations issued by federal agencies. And in cases to be argued this week the Justices may have to second-guess the Reagan Administration's decision last January no longer to support the IRS policy of denying tax exemptions to private schools and colleges that discriminate against nonwhites.

Even prior to reconvening, the court had booked its schedule of oral arguments into February. It carried 126 cases over from last term. The Justices usually try to hear about 150 cases each year. Obviously, most of the expected thousands of new cases will have to be turned away. Coming back to overflowing IN baskets is nothing new for the court, nor are complaints about it. But with the number of cases filed having doubled over the past 20 years to 4,400 last term, calls for some sort of relief are again getting shrill, even desperate. And they are led by the Justices.

This summer six of them took to various rostrums to bemoan their plight as ultimate arbiters in an overly litigious society. Justice John Paul Stevens objected to the most familiar palliative: a sort of junior varsity Supreme Court to decide those cases that do not quite make the cut. Said Stevens: "Like a new four-lane highway that temporarily relieves traffic congestion, a new national court would also attract greater and greater traffic volumes." Stevens suggested instead shaping such a body into a traffic policeman, with responsibility for selecting the cases the Supreme Court should decide.

To Justice Byron White that idea did "not address the fundamental problem." Justice Brennan was equally critical, contending that "the screening function is second to none in importance." White, with a tentative second from Brennan, proposed creating several national appeals courts that would specialize in areas, such as labor and Social Security, so that the high bench would not have to resolve so many conflicting rulings from lower courts. The participation of Brennan in this chorus of discontent gave the plaint new credence. In the past he had always pooh-poohed the notion that the court was overburdened.

The Justices' inability to agree on a solution, however, may reflect part of the problem. Washington Lawyer John Kester, a former Supreme Court clerk, faults the Justices for their increasing tendency to write separate concurrences and dissents that dwell on relatively slight differences in reasoning. Last term's prose filled 4,530 pages, he says, 60% more than in 1960 despite a small rise in the number of cases decided. University of Virginia Law Professor Stephen Saltzburg, another ex-clerk, argues that the Justices agree to resolve too many cases of only narrow importance. Last term, he notes, they churned out three opinions (a 4-to-4-to-1 split) and some 40 pages on who owns treasure aboard a sunken Spanish galleon. The court would be much more effective, says Saltzburg, "if it took fewer cases and took more time drawing opinions."

The court's failings do not cause most of the glut, of course. More lawyers bring more cases under more laws that legislatures write with less and less clarity. But too often this divided court does not provide clarity either, and the issues it does not settle keep on returning. Last year at this time they resolved to agree on some changes. But, reports Justice Stevens, "we were too busy to decide whether there was anything we could do about the problem of being too busy." --By Bennett H. Beach. Reported by David S. Jackson/Washington

With reporting by David S. Jackson

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