Is This Strict Construction?

Despite its growing reputation for splintered decisions, judicial restraint and conservatism, the Burger Court last week confounded the instant image makers. In two decisions that drew only a single dissent, the court expanded the constitutional rights of the poor, continuing a trend that typified the heyday of Supreme Court liberalism under Chief Justice Earl Warren.

In a unanimous decision, the court held that states cannot jail a man solely because he is too poor to pay a traffic fine. At issue was the case of Preston A. Tate, a Houston laborer and chronic scofflaw who had been fined $425 for nine traffic offenses. Unable to ante up, Tate was sent to a prison farm to work off his fine because, he said in a habeas corpus petition, "I am too poor."

The court in finding Tate's imprisonment a violation of his right to equal protection of the laws, sharply limited the traditional power of American judges to sentence poor defendants to "$30 or 30 days." The Constitution, said Justice William Brennan, forbids states to "limit the punishment to payment of the fine if one is able to pay, yet convert the fine into a prison term for an indigent defendant." In taking away the jail alternative, Brennan suggested various other means in which courts might deal with the poor, including the collection of fines on an installment plan.

Blistering Dissent. On a related poverty question, the court ruled that indigents who want divorces do not have to pay fees to start proceedings. Since marriage is so basic and the state has a monopoly on the means to divorce, said Justice John Harlan for the majority, the Constitution's due-process clause prohibits any state "from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages." The victors in the class action were eight New Haven women, all on welfare, who wanted to divorce their husbands but could not raise the average $60 that is necessary for filing fees and court costs.

"If ever there has been a looser construction of the Constitution in this court's history," said Justice Hugo Black in a blistering ad lib accompanying his written dissent, "I fail to think what it is." Black drew a sharp distinction between the protected rights of poor criminal defendants brought to court against their will and the private, civil claims of the impoverished who come into court on their own. Black predicted that the decision will encourage divorces at taxpayers' expense and lead to a future court-imposed right to counsel for the poor in divorce and other civil proceedings. "Is this strict construction?" he asked. The court's most avowed "strict constructionists," Chief Justice Burger and Justice Harry Blackmun, sat in stony silence.

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