Two months ago, when a bill to establish an independent consumer product safety commission was at a critical juncture in the House of Representatives, a five‑page unsigned memorandum was quietly left at several members’ offices by a prominent Washington law firm.
The memo took note of Chief Justice Warren Burger’s recent criticism of Congress in passing laws without determining whether they will overburden the federal courts. With this launching pad, the memo’s authors urged the legislators to remove key sections of the safety commission’s recognition of the rights of injured people to sue manufacturers or a non-enforcing government agency. In addition, the memo denounces other consumer bills currently before Congress on the grounds that they will overload the federal courts.
Chief Justice Burger’s statements are being exploited by these anonymous lawyer‑ lobbyists in furtherance of their corporate clients’ determination to defeat needed consumer protection laws. Unfortunately the nation’s chief jurist made it easy for them to do so by a careless analysis of a good cause.
The cause is the workload on the federal courts. The number of cases filed in the federal district courts doubled between 1940 and 1970, he said, while the number of federal judges increased by 70 percent to a total of 500. Moreover, the cases are taking longer to try and many more are being appealed. The Justice calls for better court management, less rigid procedures and more judges. He made the startling comparison that the entire federal court system ran on a budget in 1970 of $128 million, less than the cost of one of the early C-5A military cargo planes.
So far so good. But then Justice Burger recommended in his August address before the American Bar Association that “every piece of legislation creating new cases be accompanied by a ‘court impact statement,’ prepared by the reporting [Congressional] committee and submitted to the Judiciary Committees of the Congress with an estimate of how many more judges and supporting personnel will be needed to handle the new cases.” Significantly, for the business world, the Justice, in a previous speech, singled out pollution and consumer laws to indicate what he had in mind.
For Washington corporate lawyers, these words were music to their ears. To require the Judiciary Committee, headed by Senator James Eastland, to pass on these bills could bottle them up disastrously. Even with a sympathetic Committee Chairman’s ear, the suggestion would result in serious added delay and obstructions.
More disappointedly, the Chief Justice appeared not to clarify a more fundamental premise in the administration of court justice. The courts must grow and adjust to peoples’ need to use them; peoples’ rights should not be compromised or restricted in order to adjust to the courts’ problems. Never should meritorious laws or legislation be conditioned by any predicted added use of the courts. The two are separate problems to be considered separately.
Most law students early in their legal education read about pioneering cases of yesteryear where the judges rejected the argument of corporate counsel that if the judgment was for the afflicted citizen, there would follow a “flood of litigation” from similar cases. The rights of the public, in these ground-breaking cases, were not to be reduced or defeated because of managerial inconvenience to the courts.
Justice Burger recognizes the low confidence which Americans have in their courts, particularly minorities. In his ABA address he took especial note of “people who have long been exploited in the smaller transactions of daily life” coming to believe “that courts cannot vindicate their legal rights from fraud and over-reaching.”
As necessity is the mother of invention, then the emergence of new rights for Americans will be the pressure cooker for the expansion of the courts to handle the added caseload. Let not the leisurely, mismanaged, antiquated operation of the federal courts be used as a judicial holdup on consumer, environmental or any other needed laws of the land.