Toward a Burger Court

Whatever the Senate's vote this week on the controversial nomination of G. Harrold Carswell, President Nixon is determined to appoint men to the Supreme Court who are "strict constructionists." Since he will probably have the chance to choose several more Justices, what might that ill-defined term come to mean in the 1970s?

Seven months of activity by Nixon's first strict constructionist appointee, Chief Justice Warren E. Burger, are beginning to provide some answers. Burger would prefer to have the court take a less active role than it did during the Warren years, assume a low profile, and keep hands off more decisions of other branches of Government.

Ironically, Burger's respect for precedent has at least once confounded the Nixon Administration. Last fall he joined a unanimous bench in applying previous holdings of the Warren court and in ordering Mississippi schools to desegregate "at once." Indeed, Burger has not seemed anxious to lead a major retrenchment from most of the Warren court's stands. Even so, his dissents have suggested that an eventual "Burger court" might take new positions on a wide range of topics. Among them:

RACE. Burger has lately voiced some doubts about the court's summary handling of recent school integration cases. In January, he and Justice Potter Stewart added to one decision a "memorandum" suggesting that the Fifth Circuit Court of Appeals might well have been allowed to interpret the meaning of "at once" in the light of "the various situations of [the] several school districts." A Burger concurring opinion to another decision became an important part of Nixon's desegregation message three weeks ago. Burger urged the court to take future school cases that could "resolve some of the basic practical problems" of its past rulings, "including whether, as a constitutional matter, any particular racial balance must be achieved in the schools; to what extent school districts and zones may or must be altered; to what extent transportation may or must be provided."

WELFARE. A five-man majority recently ruled that welfare recipients are constitutionally entitled to hearings before their stipends are cut off. Burger's dissent typified his view that the court should not intervene when other parts of Government have recently acted. Arguing that regulations going into effect this summer will give welfare clients the same rights as the court ruling, Burger rapped the majority's action as "another manifestation of the now-familiar constitutionalizing syndrome: once some presumed flaw is observed, the court then eagerly accepts the invitation to find a constitutionally 'rooted' remedy. We ought to allow evolutionary processes at various administrative levels to experiment."

LABOR. As Burger sees it, the Warren court went too far in putting most picketing and other union activity beyond the reach of state courts. In 1959 the court made it clear that the National Labor Relations Board was the proper body to deal with such matters. When the court recently used that doctrine to reverse a Florida state court's ban on picketing for higher wages, Burger joined Justices Stewart and Byron White in a separate concurring opinion urging reconsideration of the Warren court's rule.

OBSCENITY. In recent years the court has held that First Amendment guarantees of free speech protect a wide range of material, from Henry Miller's Tropic of Cancer to potboilers like Lust Pool and Shame Agent. Here, too, Burger would back off. In a dissent from a ruling that the film I, a Woman is not obscene, Burger argued that the court "should not inflexibly deny to each of the states the power to adopt and enforce its own standards."

CRIME. An outspoken critic of some Warren court decisions upholding defendants' rights, Burger unsuccessfully urged his colleagues to review a case that could have restricted the 1966 Miranda decision requiring policemen to warn detained suspects of their rights to silence and counsel. And last week Burger sharply dissented from a key decision extending the rights of young people in juvenile courts.

Originally conceived as a means of rehabilitating young offenders and of protecting them from the stigma of a criminal record, juvenile tribunals frequently have done neither. Judges have sent delinquent youths to understaffed reform schools for terms far longer than the jail sentences that adults would have received for similar offenses. In most states, young people can be deemed delinquent if a "preponderance of the evidence" indicates their guilt--the same standard used in civil suits. Applying a three-year-old precedent that entitles juveniles to "the essentials of due process and fair treatment," a 5-to-3 majority of the court ruled that juveniles must be proved guilty "beyond a reasonable doubt," which is the more rigorous standard used when adults are prosecuted. Burger's dissent, joined by Justice Stewart (Justice Hugo Black dissented on other grounds), argued that no constitutional mandate forced the court to upset state procedures. Burger expressed fear that the decision would "spell the end of a generously conceived program of compassionate treatment."

Free to Disagree. Off the bench, former Appeals Court Judge Burger has been more active than former Governor Warren ever was. In frequent speeches, he has put the prestige of his office behind the growing movement to reform the nation's crime-breeding prisons. In an attempt to streamline clogged and creaking courts, he is helping to set up a new institute in Washington for training court administrators in modern management techniques.

Burger's views could be critical in several significant cases involving capital punishment, free speech and dissent, which have been put off until the arrival of the new ninth Justice because the court might be divided 4 to 4 on them. So far, though, Burger's opinions have not added up to a clear-cut augury of the future. University of Wisconsin Law Professor William Foster points out that Burger can "sit around and make broadside pronouncements when he is clearly on the losing side, but it may be tougher when he is working for that fifth vote."

To date, Burger seems even more devoted to "judicial restraint" than its most renowned recent spokesmen, Justice John M. Harlan and the late Justice Felix Frankfurter. A court that consistently overrides popular wishes, Burger implies, invites the majority to take the law into its own hands. Yet the Warren court often acted because no other unit of Government was willing to take on festering grievances, and that situation may not have changed substantially. Although Burger urges leaving juvenile justice to the states, for example, the states have increasingly failed to meet the challenge. The result of Burger's approach could be a recipe not for restraint but for inaction.

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