The Supreme Court: End of an Era

HOWEVER hard he tries, a President can rarely mold the Supreme Court to his ideological image. Richard Nixon may be an exception. With the appointment of only two Justices, he has already helped to blunt the judicial revolution that began in 1954, when Earl Warren wrote the court's unanimous decision outlawing school segregation. That historic ruling was followed by scores of others involving race relations, voting, and capital punishment--many of them containing unprecedented guarantees of individual rights in America. Now, as the new Burger Court nears the end of its second term, it seems obvious that the Warren years of legal daring are over.

The Warren Court's major instrument for change was the 14th Amendment. Ratified after the Civil War, that amendment was primarily designed to safeguard individuals, especially blacks, against state infringement of two rights: due process and equal protection of the laws. At first, U.S. courts interpreted those rights cautiously, fearing to upset the delicate balance between the state and federal governments.

The Warren Court showed no such reservations. Ultimately, it "incorporated" most Bill of Rights safeguards in the 14th Amendment and thereby imposed them on the states. To the Warren Court, due process required the same fundamental fairness in state as in federal courts, and in case after case it found that state procedures did not measure up. As for equal protection, the court vindicated the rights not only of blacks but also of larger disadvantaged classes, from the poor to underrepresented city voters.

The Burger Court has served notice that it will not retreat from the Warren Court's sweeping school desegregation manifestoes, at least so far as Southern de jure segregation is concerned. Last term it ordered Southern public schools to desegregate "at once." This term it told lower-court judges to use all means necessary, including busing, to dismantle the South's dual school systems. In perhaps its most far-reaching decision on race, the Burger Court ruled unanimously this spring that businesses cannot use educational requirements to screen out minority job seekers arbitrarily.

Still, the new court is far more restrained than its activist predecessor. Where the Warren Court often upset state laws that ran contrary to its broadly conceived egalitarianism, the present court avoids such confrontations whenever possible. It has often been unreceptive, for instance, to suits on behalf of welfare recipients. As a result, it has down-played the 14th Amendment and even trimmed some of its forerunner's key rulings. The new approach:

> By demanding only that state laws have some rational purpose, the Burger Court has stunted the Warren Court's expansive development of the equal-protection clause. Thus it upheld a California law that requires low-rent housing to be approved by a community referendum before it can be built. No other housing is subjected to such a requirement, and blacks especially will be hurt by the ruling. But the court chose to extoll the virtues of democratic referendums and found that California's "seemingly neutral" law had no discriminatory intent. Last week the court further ruled that states are not required to carve up election districts having several legislators, though a state's refusal to convert to single-member districts usually leaves black voters greatly outnumbered and without representatives of their own.

> By dismissing strong language in some Warren Court rulings as mere dicta (discussions not crucial to a decision), the new court has snipped away at due-process precedents. So far, the chief casualty has been the Warren Court's famous decision in Miranda v. Arizona (1966), which held that police cannot question a suspect in custody until they inform him of his constitutional rights to silence and counsel. At issue this term in Harris v. New York was whether statements made by an unwarned suspect could be used to impeach his testimony at trial. By a vote of 5 to 4, the new court said yes (provided there is no evidence of police coercion). It thereby brushed aside language in Miranda that appeared to bar uncounseled statements for any purpose. That language, said Chief Justice Burger for the majority, "was not at all necessary to the court's holding and cannot be regarded as controlling."

> By narrowly defining the reach of some Warren Court principles, the new majority may have rendered them virtually inoperative. At the height of Southern civil rights activism in 1965, for example, the Warren Court fashioned the so-called Dombrowski rule, which greatly increased the power of three-judge federal courts to halt allegedly unfair state prosecutions. This term the Burger Court rolled Dombrowski back, barring federal interference except in cases of a prosecutor's blatant bad faith or harassment, or when a state law is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph."

Since the Burger Court includes seven holdovers from the Warren Court, how has the turnabout taken place? The obvious answer is that the old court was so sharply divided (5-to-4 votes were common) that a minor change has produced a major shift. With the appointments of Chief Justice Warren Burger and Justice Harry Blackmun, both the vote and the psychological advantage have shifted to the side of restraint. Explains one close court observer: "The substitution of X for Y in the makeup of the court changes the personality of the entire group. Somebody who was affirmative because he was sure he represented the majority becomes defensive when he realizes that he's now in the minority." As a result, says another observer, Stanford Law Professor Anthony Amsterdam, "the liberals have tucked in their horns; they just don't vote their liberal inclinations unless it's damn important."

Who leads the new court? Ceremonially, the leader is Chief Justice Burger, who presides at conferences and assigns written opinions when he is in the majority. In fact, Burger has not yet assumed the court's intellectual leadership. His satisfactions instead appear to spring from his off-bench role as ardent advocate of court modernization and prison reform. On the court, Burger can consistently count on only one other Justice to vote his way. He is Burger's old friend and philosophical ally, Harry Blackmun, who has disagreed with the Chief Justice on only one major decision this term, the California housing case in which Blackmun joined the dissenters.

Centrist Coalition. The key to the new court's direction lies with the four centrist Justices--Stewart, White, John Harlan, Brennan--whose shifting alliances frequently tip the balance on close constitutional questions. Potter Stewart, 56, epitomizes the centrist position. Pin-striped and polished, he writes careful opinions that cannot be easily categorized.

At 53, Byron White is the youngest Justice. He is tough on crime, strong on civil rights, and flexible on just about everything else. John Harlan, though 72 and handicapped by failing eyesight, delivers the court's most scholarly opinions. Always restrained in outlook, Harlan has become more influential with his colleagues in their closed-door deliberations. Though his approach has not changed, the court's rightward shift occasionally makes him look quite innovative. It was Harlan who wrote this term's decision requiring states to absorb court costs for indigents seeking divorces. The new chemistry of the court has also worked its wonders on gentle William Brennan, 65. Usually a stalwart of the Warren Court's activist wing, he has seemed to be inching rightward to join the present center. Still, it is Brennan who has issued some of this term's most bitter and most personal dissents.

Deceptive Pace. Despite its new restraint, the Supreme Court is even more vigorous in its disposition of cases than it was in the Warren years. This term it is substantially ahead of the Warren pace two years ago. But that fact is deceptive: the Warren Court showed an immense appetite for controversial cases; the present court does not. Says University of Chicago Law Professor Harry Kalven Jr.: "This court is in favor of doing anything to avoid a controversial case. So they're taking only the controversial cases they can't possibly not take."

As if heeding the late Justice Felix Frankfurter's pleas to shun the "political thicket," the court rejected a petition by the State of Massachusetts that challenged the constitutionality of U.S. participation in the Viet Nam War. More surprisingly, the court has also recoiled from environmental issues. Last December, for example, it refused to hear a group of Texas conservationists who sought to halt the federal funding of an expressway through a San Antonio park. In dissent, Justice Hugo Black extolled parks ("quiet retreat for birds and animals . . . where lovers can while away a sunny Sunday") and blasted superhighways ("ugly, smelly stream of traffic . . . trees, shrubs and flowers mown down"). But only two of his fellows joined in pleading that the court hear the case.

Redressed Balance. Clearly, the new court's message is distinct from the old: it will not meddle with the other branches of government, state or federal, if it can possibly avoid doing so. The approach rouses strong reactions in the academic community. Says Stanford's Amsterdam: "As long as there is a court at the top that is protective enough of constitutional rights, the lower courts will strike a balance against the overwhelming conservative bias of legislators, cops and prosecutors. Take away the liberal threat at the top and the entire system goes rotten."

In fact, what the court has begun to do --and not for the first time in its history --is redress the power balance among branches of government, which many critics felt the aggressive Warren Court knocked askew. Except in the criminal area, most of the individual rights won under the Warren Court will stand. But if there are to be further innovations, many aggrieved Americans and new interest groups will have to look in another direction, most often to their elected representatives. The question remains whether those representatives are prepared to respond.

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