Everybody knows that judges take long summer vacations. This has not kept Chief Justice Warren E. Burger and several of his Supreme Court Associate Justices from complaining about the expansion of litigation in the federal courts. They have devoted long speeches to this overloading of the judiciary. While they take note of the need to improve efficiencies in the courts, their principal recommendation is that something be done about the public demand that initiates all these lawsuits, rather than urge the expansion of courts to meet that demand more expeditiously.
In the Seventies, Chief Justice Burger called on Congress to consider the federal court case load before passing more legislation giving people rights as citizens, consumers and workers. I thought his approach rather astonishing. The progress of a democracy under law is measured, in part, by the access its people have to use the courts to defend or enforce their legitimate rights. Providing more equitable access is part of the solution to injustice and not a reason for slowing or curtailing the rights of Americans. After all, the courts should expand to meet the demand for justice instead of the reverse which would be to reduce citizens’ civil, environmental, health, contractual and other rights in a society expanding with complexity.
Our nation spent in the past year on its entire federal court system a little more than half of the cost of one Trident submarine. To fund the Supreme Court, twelve circuit courts, one federal circuit court, and ninety-four District Courts, the Congress appropriated $825 million. By contrast, Congress appropriated over one billion just to run itself and nearly $800 billion for Executive Branch expenses and disbursements.
Case filings in federal district courts totaled 89,112 in 1960 when there were 245 judgeships and 245,656 new cases in 1982 when there were 515 judgeships. The economy in that period has doubled in size. With the sharp rise in the number of business transactions, more companies are using the courts against one another for complex, interminable struggles. Clearly, case volume reflects more than plain citizens’ invoking their personal rights.
In any event, does this growth between 1960 and 1982 demonstrate an out of control, capricious use of the federal courts? I do not believe so. The real problem is the vast number of aggrieved people who do not know about or who cannot afford to use their legal rights in court. That is the iceberg, below the visible tip, which the Chief Justice seems to ignore.
Senior Judge, David Bazelon, of the U.S. Court of Appeals for the District of Columbia replied to the Warren Burger viewpoint in a recent law school commencement speech by citing the drastic changes in science and technology and the revolution of social and economic expectations. Both developments, he contends, have created many new rights of action. “Some of the poor, the disadvantaged, and the disenfranchised are taking their causes to court,” he says.
Judge Bazelon adds: “For nearly two hundred years of this nation’s history, few Blacks, Hispanics, or Asian-Americans, to name only a few of the victims of oppression, would have thought of taking their claims to court: they knew they would receive no hearing there. But today, the expectations of the disadvantaged, as well as the sensitivity of our society to their plight, have been heightened.
“If the so-called ‘litigation crisis’ is due in any significant part to the increase in social expectations of the disadvantaged and to society’s growing sensitivity to such issues, and I believe it is, then in my opinion the increase in litigation is a healthy one. Judicial economy must not be purchased at the price of justice,” concludes Judge Bazelon.
Certainly there should be unremitting efforts to prevent the injustices long before they have to be litigated. Preventive health, safety and environmental care are illustrations. And granted` there are some good alternatives being utilized to resolve disputes outside of the courts. But as long as the courts are the last resort, the judiciary should recognize that adequate facilities must be provided for its petitioners.