Out of Business

Hardly Going In the not-so-distant past, the Supreme Court hewed to precedent and generally rebuffed all but the most monumental constitutional questions. But ever since Earl Warren became Chief Justice in 1953, a new "activist" court has thrown open its judicial windows to practically every ill and issue of U.S. life. In the face of what it regards as legislative inaction, the "Warren court" has desegregated schools, revolutionized criminal justice, rewritten the U.S. political system by plunging into the thicket of legislative reapportionment. To expand the long reach of the Constitution, it has imposed almost all of the Bill of Rights on the states as well as the Federal Government for the first time in U.S. history.

Time and again, critics have blasted the Warren court for being more political than judicial; yet time and again, its controversial decisions have survived all efforts to override them by constitutional amendment. Not surprisingly, the nation's lawyers now figure that almost every case raises constitutional issues that may attract the court. They appeal more and more cases, and as a result, more and more decisions raise more and more issues. Over the years, the court's workload has risen steadily. In 1940 the court handled only 977 cases, in 1950 only 1,181. Last term it considered a total of 3,267 cases.

Guilt & Garbage. To hear some experts tell it, the Warren court has covered so much ground that it now faces its dullest term in 14 years. At first glance, the new docket promises few blockbuster decisions, such as those that banned public-school prayers in 1963 and curbed confessions last June. Yet the Warren court is hardly preparing to go out of business. Last week it faced requests to review lower-court decisions involving everything from labels on Swiss cheese to the right of students to sport beards and spurn haircuts. This week as it goes back to work, the court begins hearing oral arguments in three cases that will plunge it right back into a familiar miasma--obscenity.

None of the obscenity cases promises to answer lower-court prayers for clarification of last term's Ginzburg decision. But two may clarify the doctrine of scienter (to know), the requirement that a smut seller must have "guilty knowledge" that his wares are obscene before he is criminally liable. In a New York case, Times Square Bookstore Clerk Robert Redrup was convicted of selling paperbacks titled Lust Pool and Shame Agent to a plainclothes cop who asked him why he sold such "garbage." Said Redrup: "There's worse stuff around." Redrup argues that his comment failed to prove scienter.

Press v. Privacy. After obscenity, the court faces more redolence: Teamster Boss Jimmy Hoffa's 1963 conviction (eight years, $10,000) for fixing a 1962 Tennessee jury that acquitted him of the charge of taking a bribe from a trucking company. Hoffa protests that the Justice Department's tampering evidence came from a "spy," planted among his entourage, who violated his right to counsel by attending some of Hoffa's conferences with his attorney. Hoffa Lawyer Z. T. Osborn Jr., who got 3 1/2 years for tampering with another Hoffa jury, protests the Government's use of a recorder taped to the back of another "spy." On these cases hang not only the defendants' fate but also Government use of informers and electronic eavesdropping--practices that raise complicated issues of due process as well as privacy.

In another key privacy case (Time Inc. v. James J. Hill), the novel issue is whether the First Amendment right of free press limits a state-law remedy for invasion of privacy. LIFE ran a photo review of the 1955 play The Desperate Hours, noting its apparent parallels to an incident involving the real-life Hill family, whose home had been invaded by escaped convicts. Citing inaccuracies, Hill won a $30,000 New York award under a privacy law that may sometimes make even honestly erring news reports actionable if the subject did not consent to the story and the publisher's "sole" aim was to boost circulation. Al though the case was argued last term, with Lawyer Richard Nixon appearing for Hill, the Supreme Court took the unusual step of ordering reargument next week before issuing a decision.

Also accepted and due for early argument are cases affecting important aspects of U.S. law:

sbANTITRUST. The year's big merger case involves mammoth Soapmaker Procter & Gamble's acquisition of Clorox Chemical Co., the top U.S. manufacturer of liquid bleach. The FTC washed out the 1957 merger, ruling it unfair to smaller competitors; a U.S. appellate court reversed the FTC, calling it hostile to mere bigness. The Government, which has yet to lose a major antitrust case in the Warren court, now seeks to vindicate the FTC.

sbDOUBLE JEOPARDY.The Fifth Amendment bars federal courts from trying anyone twice for the same offense, but that particular Bill of Rights provision has yet to be applied to the states. As one result, the Supreme Court ruled in 1959 that a person can be tried for the same crime in both federal and state courts (Bartkus v. Illinois). As another, Indiana's top court last year rejected the federal standard, upholding Ronald R. Cichos' retrial and conviction for reckless homicide while tossing out his claim of double jeopardy. If Cichos wins his Supreme Court appeal, all American courts will have to use the federal double-jeopardy rule, while federal and state agents will have to decide who will prosecute when both have jurisdiction.

sbJUVENILE COURTS. The court has yet to hold that the 14th Amendment gives accused juveniles such adult due-process rights as counsel and the privilege against selfincrimination. Most juvenile courts, as a matter of fact, are considered "therapeutic tribunals," and as such they largely ignore criminal-law standards. In Arizona, a neighbor accused Gerald Gault, 15, of making lewd phone calls in 1964. Proceeding informally, the juvenile-court judge acted without advising Gerald of any of his constitutional rights or his ever hearing his accuser. Young Gerald was given six years in a state training school. Arizona's top court upheld the sentence; his parents and numerous amid curiae now challenge Arizona's entire juvenile code as unconstitutional. If the Supreme Court agrees, In Re Gault may drastically change juvenile courts throughout the U.S.

sbSELF-INCRIMINATION. The court has twice upheld a 1951 federal law requiring gamblers to buy a $50 tax stamp, pay 10% tax on all bets, and divulge all clients' names and addresses. The court saw no conflict with the Fifth Amendment privilege against selfincrimination, even in states where gambling is illegal. But last year the court ruled that another federal law forcing Communists to register did violate the Fifth. Now a Bridgeport, Conn., gambler named Frank Costello (no kin to the more famous retired gambler, Frank Costello) aims to parlay the Communist decision and scratch his one-year rap for ignoring the federal gambling law. If the court rereads the Fifth Amendment, the results may dismay federal agents.

sbSPEEDY TRIAL. In federal courts, the Sixth Amendment right to "speedy trial" spurs prosecutors to try defendants promptly after indictment or face possible court dismissal of the charges. In many state courts, defendants may await trial for months or even years while friendly witnesses vanish. In 1964, Duke University Zoologist Peter Klopfer was arrested for trespass while trying to desegregate a Chapel Hill cafe. The prosecutor invoked a unique North Carolina law empowering him to suspend the charges, then revive them any time he pleased. In effect, says Klopfer, he was permanently enjoined from racial protest in violation of his right to speedy trial as well as free expression and equal protection.

Atheists & Nudists. Among scores of cases not yet accepted, the court may find sleepers that can put their mark on the entire term. Assorted appeals could push the court's historic one-man, one-vote reapportionment ruling down to the election of judges, county supervisors and school boards. Others seek to void laws against racial intermarriage in 17 states, rule nudist magazines non-obscene, and lift the State Department ban on travel to Cuba. The court is being asked to expand its 1964 libel decision (Times v. Sullivan) by subjecting not only public officials but anyone "in the public eye" to the stiff burden of proving "actual malice." In the case of Mark Painter, 8, the court is also being asked to review an Iowa ruling that took the child away from his fit but "bohemian" father and gave him to his "conventional" grandparents.

Not the least of the questions up for consideration are two California Supreme Court decisions that threw out the voters' overwhelming approval of state constitutional amendments. When Californians went to the ballot box and banned pay TV, ruled the state court, they violated the First Amendment right of free expression. When they toppled laws barring racial discrimination in the sale or rental of private housing, said the court, their vote amounted to discriminatory "state action" that violated the equal-protection clause of the 14th Amendment. Now the nation's top court must decide whether to review those decisions or let them stand.

Equally combustible is a Maryland high-court ruling that voided state grants for nonreligious facilities at three religious colleges. The court saw in the practice an unconstitutional "establishment of religion," thus casting grave doubt on similar federal support for church colleges and parochial schools. Even more combustible is Atheist Madalyn Murray O'Haire's challenge of tax exemption for churches, which the Maryland court unanimously rejected.

Straining Dignity. While the Warren court mulls over such potential blockbusters, many a free-swinging legal pundit is gossiping that two of the great activists may soon quit--Justice Hugo Black, because he is now past 80, and Justice William O. Douglas, because he has supposedly strained court dignity by taking a fourth wife of 23. Knowledgeable court watchers will have to see it to believe it. Even so, a change in the court's composition may be coming. Along with the aging Black and Douglas, Chief Justice Warren is 76; Justices Clark and Harlan are 67. And the word is that Clark's son Ramsey may become Attorney General (once his father's post). If that happens, Clark might consider resigning in order to avoid any suggestion of impropriety in his sitting on Justice Department cases. Thus far, President Johnson has appointed only Justice Abe Fortas; the odds are that he will soon be called on to fill other vacancies--and perhaps create a considerably different court in the process.

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