Scalia speaks out

AS the juniormost associate justice of the Supreme Court of the United States, Antonin Scalia performs certain housekeeping chores for his colleagues. It is one of the strengths of the US system that, despite such chores, he can still speak up and make a major call for reform of the federal judiciary. His suggestions for restoring the federal courts to the ``elite'' system the Founding Fathers envisioned cannot be embraced in toto. He probably doesn't expect them to be. But he has brought welcome and needed attention to the problem of overcrowded federal courts.

As Justice Scalia told the fellows of the American Bar Association in New Orleans Sunday, each of the federal district judges now confronts almost twice as many cases in a year as their counterparts did 25 years ago. For each circuit judge, the caseload has nearly quadrupled.

Thus, judges are feeling less like legal scholars and more like ``case processors,'' Scalia suggests. And although he didn't mention it, there is also the concern over money: For the kinds of people the country needs as federal judges, living on judicial salaries almost always represents a major financial sacrifice.

Looking ahead a few years - when the bureaucratic realities of the federal bench catch up with the current image of elite legal scholarship - Justice Scalia projects a time when the US will indeed have trouble finding truly qualified judges.

What is to be done? More judgeships can be created, as in fact they already have been: Active district judges have more than doubled since Scalia'a benchmark of 1960 - the summer he graduated from law school - from 230 to 540; circuit judges, then 68-strong, now number 168.

Some cases might be better resolved elsewhere than in federal court. Various forms of mediation and so-called agency adjudication should be considered.

So should different means of discouraging frivolous litigation - although the right to sue for redress of grievances is fundamental to the American system.

Scalia's call for specialized courts - for Freedom of Information Act cases, for example - raises other issues. The US tradition calls for courts with general jurisdiction. Specialized courts could fall prey to cronyism and worse. In recent years federal bureaucracies have been kept in - or brought into - line by federal courts that have, for instance, prevented the administration from cutting people off the disability rolls. And Scalia himself has been no friend of the Freedom of Information Act. His interest in special courts for such cases deserves careful attention, to say the least.

Still, Scalia does a service in bringing the issue to public notice.