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Report No. 95

4.3. View of Chief Justice Burger of the American Supreme Court.-

We must, however, note that in respect of a proposal that is being mooted in the United States for (inter alia) bifurcating the Supreme Court of that country, Chief Justice Warren Burger seems to have expressed the view that an amendment of the Constitution, may be required. A question and answer session with the Chief Justice has been recorded, and the record reproduced, in the Span magazine.1-2 The suggestion that was under discussion was that a Commission be created to look into the problem of the quality of justice in the Supreme Court, having regard to its heavily increasing workload.

A point put forth by the Chief Justice was that even without waiting for a commission report, congress should set up a special temporary panel made up of about 26 judges, drawn from the circuit judges and seven member panels of those 26 should take some of the cases that would be otherwise heard by the Supreme Court. The panels should at least hear cases involving conflicting rulings by circuit courts. The rulings of the panel could be reviewed by the Supreme Court. The Chief Justice had also drawn attention to the fact that some countries had different apex courts for different types of cases. The question whether these proposals may involve constitutional amendment was then raised and the following is an extract of the questions and answers relevant to this point:-

"Q. Would a constitutional amendment be needed to make drastic changes in our appellate procedure?

A. Creation of a new intermediate court under the Supreme Court would not require such an amendment nor would this temporary panel.

Q. What about setting up two or three Supreme Courts?

A. A great many judges, lawyers and legal scholars would be sure to think (that) it required a constitutional amendment, because there is a widely accepted view that Article III of the constitution, which says there shall be "one Supreme Court", means that the Supreme Court cannot sit in divisions or panels. Creating several Supreme Courts would be a drastic solution, but the Commission should consider all the options."

The point had, earlier, been dealt with also by Earl Warren in the context of the proposal for creating a National Court of Appeals. Here is the relevant passage from an articles in the Journal of American Bar Association.3 "To restate the problem more precisely the question is whether the Article III mandate that there be but "one Supreme Court" is violated by the proposed division between the National Courts of Appeals and the Supreme Court of the exercise of the certiorari jurisdiction that has been vested only in the Supreme Court. When the jurisdiction of the Supreme Court is exercised by two courts have we not created two Supreme Courts in contravention of this Constitutional limitation?"

1. "The Quality of Justice" (record of an interview Oct., 1983), SPAN, 35, 36.

2. See also para. 3.14, supra.

3. (1973) ABAJ, 721-730 at 729.

Constitution Division within the Supreme Court Back

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