Move to Moderation

When the Supreme Court began its 177th term last October, most court watchers predicted an important but unspectacular session of setting earlier milestones more firmly in place. Last week, as the term closed in a heavy flurry of decisions (see following stories), it turned out they were right.

The 3,356 cases considered by the court produced only two decisions with any new national sweep: a ruling that juvenile courts must now give accused minors many of the rights that adults have, and last week's eavesdropping decision. Otherwise, criminal defendants made only modest gains. So did prosecutors and police, as the court eased certain standards for evidence admissible in trials, and upheld the right of police to arrest and search suspects on the basis of a reliable tip without revealing the informer's name.

Turned Corner. By throwing out Proposition 14, it ruled in favor of open housing in California, but it also served notice that it would not protect civil rights demonstrators who violate legitimate local laws. On obscenity, the court continued to find most works protected by the First Amendment. But it did suggest that distasteful purveying of borderline works or selling to minors may well be legitimate criminal offenses if legislation is drawn with proper narrowness. On individual rights, the court found that a U.S. citizen cannot be deprived of his citizenship for voting in another country's election.

Civil libertarians, like University of Pennsylvania Law Professor Anthony Amsterdam, feel that the court has "turned a corner," and that from now on the balance will shift against criminal defendants and civil rights demonstrators. But the new-found moderation might be better read as an indication that many cases now reaching the court are no longer as clearly in violation of its reading of the Constitution. The court activists, who used to find themselves most often in the majority of 5-4 decisions, now increasingly lose at least one of their number to the re-strainers. The man whom most regard as the key is Justice Hugo Black. He has emerged as a surprising swing man, but as one Justice Department court expert puts it, "Black hasn't shifted as much as many people think. It is the events that have moved."

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