Ten years have passed since Chief Justice Warren E. Burger propounded a novel idea. Speaking to the American Bar Association, he proposed the creation of a new federal court to resolve intercircuit conflicts. It was a good idea then, and it is an even better idea today.
Burger suggested that Congress create a special panel of 26 sitting federal judges, two from each of the 13 circuits. During a trial period of five years, seven (or nine) of the judges would assemble annually to hear and decide cases referred to them by the Supreme Court. They would dispose of probably 30 to 45 cases a year.As Burger pointed out, the tribunal would involve little additional expense. At the end of the experimental period, Congress could decide whether to keep it going.
Sens. Strom Thurmond, Bob Dole and Howell Heflin thought the idea was sufficiently attractive to justify a test, but their 1983 bill got lost in the shuffle and nothing came of it. Since then the number of conflicting cases has grown.
Suppose Burger's panel had been operating in the 1992-93 term of court. The high court might have sent it the case of Bouvier vs. U.S. The question in this drug manufacturing case had to do with how the evidence was physically weighed. If the illicit liquid were weighed in one way, the Sentencing Guidelines Manual decreed one punishment. Weighed another way, the evidence permitted another punishment.
Clearly we are not talking about a life-or-death matter in such cases, but the courts of appeals are sorely divided.
A year ago, when the Supreme Court declined to hear Bouvier's appeal, Justice Byron White dissented: "I believe it is high time to resolve this enduring conflict that makes a defendant's sentence depend upon the circuit in which his or her case is tried."
White dissented 29 times in the 1992-93 term from similar denials. He wanted the full court to hear a case arising in New York under the Equal Pay Act. A woman who served as a school "cleaner" demanded the same pay given to a school "custodian." She charged discrimination because of her sex. The school board denied the charge, saying that a valid classification system provided a reason "other than sex" for the differential in pay.
What are valid reasons "other than sex"? The circuit courts have disagreed flatly on how the act should be applied. Chief Justice William Rehnquist and Justice Sandra Day O'Connor also wanted to hear the New York case, but it takes four votes to grant a petition for review. Cora Aldrich, the cleaner, got nowhere. A Burger panel would have settled the matter.
The Supreme Court receives nearly 7,000 petitions for review every year. It currently accepts only 110, more or less, for oral argument and decision. A Burger "Court for the Resolution of Conflicts" makes common sense to me. The chief's proposal ought to be revived.