Year of the Pause

During the term that ended last week, the United States Supreme Court had its first new Chief Justice in 16 years. Warren Burger was chosen by President Richard Nixon in the hope that he would direct the court toward a new era of judicial restraint, a pullback from the activism and controversy of the Warren Court. The outcome was just that, but it was not really Burger's doing so much as it was the U.S. Senate's. A seat on the court remained empty for virtually the entire term, the result of the Senate's rejections of Nixon Nominees Clement Haynsworth and George Harrold Carswell. With only eight, and sometimes seven* justices sitting, the court sidestepped decisions on some of the most controversial cases argued before it. It was, according to Law Professor Alexander Bickel of Yale, "the year of the pause."

In the court's final actions of the term, a time in past years when it has handed down decisions on critical issues, the hesitancy to decide important cases was underscored. The court:

>Deferred consideration on the controversial Charlotte, N.C., school-busing case until lower courts pass judgment on the new desegregation plans of the Department of Health, Education and Welfare for the school district. At issue: a district-court order requiring busing of white children into predominantly black inner-city schools to achieve meaningful desegregation.

> Postponed action on whether a draftee may claim conscientious-objector status because of specific objection to the Viet Nam War. The selective C.O. issue was put off when the court ruled that the case of John Sisson Jr., a recent Harvard graduate who had refused induction because he opposed the war, had been improperly appealed from a federal district court. At the same time, the court accepted two cases for next term that raise the same issue. (In similar fashion earlier last month, the court decided a case challenging the constitutionality of capital punishment. The court disposed of it on a technicality, but accepted two cases next term that raise the same issues.)

>Ordered reargument in a case involving obscenity charges against theater proprietors who show the film I Am Curious (Yellow). At issue is whether the proprietors have the right to show the film to patrons even if they have been forewarned of its contents.

Warren Court Legacy. "The court moved at a slower pace and with greater care than in previous years, but it certainly did not try to tear down what the Warren Court accomplished," says Stanford Law Professor Gerald Gunther. The Burger Court, in fact, modestly extended the pioneering doctrines of the Warren Court in several areas. The historic thrust of the Warren Court to desegregate public schools was advanced last October when the Burger Court unanimously ordered southern school districts to desegregate "at once" --a sharp rebuke to the Nixon Administration's earlier efforts to ease desegregation pressures on the South.

The one-man, one-vote formula, presaged by the Warren Court's Baker v. Carr, inched forward when the court ruled that malapportioned school districts were as constitutionally intolerable as state legislatures in the same condition. Last week Chief Justice Burger, speaking for a unanimous court, held that an indigent person cannot be kept in jail beyond the maximum sentence to work off a fine that he is too poor to pay. "I can't think of a single case," said one court insider, "that would have been decided differently a year ago."

Though few of the court decisions are likely to appear in future constitutional-law textbooks as landmarks, many resolved issues of pressing importance to large sectors of the population. The court moved most dramatically in the Selective Service field, curtailing a local draft board's power to reclassify punitively those with deferments who violate Selective Service delinquency regulations, while giving young men who have moral, rather than purely religious scruples against war a basis for maintaining a conscientious-objector status. Welfare recipients were given the procedural protection of an evidentiary hearing before their payments could be cut off, but the maximum limits on welfare grants for dependent children set by the states were judged valid.

Six-man juries, rather than the traditional twelve, were approved by the court in state criminal trials. Judges were given the green light to warn, gag or expel defendants who become unruly in the courtroom. The court also found constitutional the tax-exempt status of church property, a traditional but recently challenged doctrine. Justice William Douglas alone argued in dissent the "strict constructionist" position that the exemption was illegal because of the First Amendment's prohibition against the establishment of a national religion.

Potted Geraniums. Chief Justice Burger might well be satisfied with a court performance characterized as "marking time" by Professor Charles Alan Wright of the University of Texas Law School. When Burger succeeded Earl Warren as Chief Justice, he sensed a need to restore the court as a symbol of serenity and reason in a deeply troubled nation. Outside the court, the campaign to impeach Justice Douglas and the bitter Haynsworth and Carswell political battles made Burger's task all the more difficult. Internally, the new Chief Justice's attempt to persuade his colleagues to his point of view often failed. Using acerbic language in one opinion,

Burger wrote: "By placing a premium on 'recent cases' rather than the language of the Constitution, the court makes it dangerously simple for future courts, using the technique of interpretation, to operate as a 'continuing constitutional convention.' " The Chief Justice's votes, this term often with the minority, may soon be found more frequently on the majority side when his friend Justice Harry Blackmun joins the court for the full term.

Nonetheless, the court's aggressiveness under Earl Warren has been somewhat muted, and the new Chief Justice has encouraged a more relaxed atmosphere within the court. He has lengthened the lunch break from half an hour to an hour and eliminated the depressing funereal air of the justices' private dining room by hanging paintings on the bare walls. With $200 from the court's limited budget, Burger purchased potted geraniums for the four interior courtyards of the Supreme Court Building. Though he redecorated the justices' wood-paneled conference room, he left one painting in place: a portrait of John Marshall, the first great Chief Justice and judicial activist.

*Associate Justice Thurgood Marshall was hospitalized with pneumonia for four weeks.

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