Now, the Nixon Court and What It Means

WHEN Richard Nixon campaigned for the presidency, he charged that Justices on the Supreme Court's liberal majority were letting their personal social philosophy affect their interpretation of the Constitution. Given the independence of the judiciary, the attack seemed merely a sharp--and perhaps popular--political debating point. Yet the court's independence hangs in part on the vicissitudes of health among its members. Last week Justice John Marshall Harlan, 72, resigned because of severe illness only six days after the resignation of Justice Hugo L. Black, 85, who died last week in Bethesda Naval Hospital from the effects of a stroke. With Black's death, the court lost its most eminent civil libertarian and a Justice who, more than any other, had influenced its liberal course under Chief Justice Earl Warren.

Thus Nixon had a sudden opportunity to impose his own philosophy on the court. His appointees, moreover, in all likelihood will continue to influence the nation's legal system--with potentially vast impact on society--long after Nixon leaves office.

Nixon's opportunity to appoint four Justices in his first term in office has been equaled or surpassed only four times since George Washington appointed the first members of the high court. (Taft nominated six his first term, Lincoln five, Benjamin Harrison and Harding four each.)

Intellectual Pillars. The general shape of the emerging Nixon court seems clear. It will turn more sharply away from the activist, innovative role as practiced under Chief Justice Earl Warren and toward a limited and cautious translation of the Constitution. That trend already had been evident since the departure of Warren and the arrival of two Nixon appointees, Chief Justice Warren Burger and Justice Harry Blackmun. There is even the possibility that some of the Warren Court decisions that broadened the protection of minority groups in civil rights cases and of defendants facing criminal prosecution could be modified or reversed. Nixon has claimed that some of those decisions "tipped the balance against the peace forces in this country, and strengthened the criminal forces." He undoubtedly will seek nominees who agree.

A more immediate impact also is probable: the professional competence of the court will decline. Whatever the differences in their conclusions--and they were many--Justices Black and Harlan were the court's intellectual pillars, sustaining reputations for judicial integrity, dignity and tight reasoning through some of the court's most turbulent years. Combining half a century of service on the bench, they cannot be replaced by any pair who could immediately command a similar respect from their colleagues, or from the legal profession. Blemished by the resignation under fire of Justice Abe Fortas, the abortive attempts to impeach Douglas, and Nixon's unsuccessful efforts to elevate two lesser jurists, Clement F. Haynsworth and G. Harrold Carswell, the court is in need of new stature.

Centrist Judges. Harlan, who was hospitalized last August with a spinal cancer, was the court's most skilled craftsman. More closely attuned to Nixon's legal philosophy than Black, Harlan was a judicial conservative whose lucid opinions rested on scholarship and a devotion to precedent--even to the point of often discarding his own previous positions once a majority of his colleagues had rejected his argument. "He kept the court honest by insisting on acid analysis and intense self-reflection," notes Stanford Law Professor Anthony Amsterdam. "His genius was in his sense of the proper decision-making processes of the court." Although often a leader of the conservative dissent against many innovations of the Warren Court, Harlan was more logical than ideological, and he had emerged in the Burger Court in a group of centrist judges whose swing votes could prove decisive.

The Princeton-educated son of a Chicago lawyer-politician and grandson of a Supreme Court Justice of the same name, Harlan opposed the Warren Court's decisions calling for reapportionment of legislatures in pursuit of a one-man, one-vote principle and the Miranda ruling throwing out confessions from criminal suspects not advised of their right to counsel. An advocate of judicial restraint, he objected to intervention by federal courts in state obscenity cases unless the state action was "clearly the product of prudish over-zealousness." In a recent capital-punishment decision--the court's most emotional pending issue--Harlan argued that there was no constitutional obstacle to a jury both determining the guilt of a defendant and sentencing him to death. On many issues, Harlan thus was on the Government's law-and-order side, and Nixon is not necessarily gaining a vote in replacing him.

Positive Gain. That is not the case in naming a successor to Black. Like Harlan, Black was a jurist who maintained that personal philosophy had no place in any judicial reckoning; yet he managed to read the same documents as Harlan and find different meanings in them. He was a passionate, literal exponent of free speech and a free press. He led the court into expanding the application of the Bill of Rights to cover state as well as federal actions. As the court was attacked for asserting the rights of criminal suspects or banning prayer in schools, Black would reply: "The court didn't do it. The Constitution did it." Replacing Black, the Alabama-born appointee of F.D.R., will surely prove a gain for Nixon's point of view.

Although Presidents have been sadly surprised by the performance of some of their appointees (most notably Dwight Eisenhower by Warren and Theodore Roosevelt by Oliver Wendell Holmes), Nixon seems far too conscious of just what he wants in a Justice to err in selection. One likely choice: Virginia Representative Richard Poff, 47, a political conservative who is highly respected by his colleagues on the House Judiciary Committee for his legal competence. Poff would not be eligible if Congress had passed a bill he had introduced in 1963 requiring Supreme Court nominees to have spent at least five years as a judge or ten years in legal practice. "Isn't it fortunate the House and Senate didn't pass my bill," Poff joked last week.

The new Nixon court apparently will thus line up with Burger, Blackmun and the two new appointees in an almost automatically conservative group on which Nixon can count; Douglas and Marshall will be isolated on the left, frequently joined by Brennan; Stewart and White will be in the center, devoid of Harlan's influence and even more unpredictable than before.

Capital Punishment. What that will mean in impending cases is not at all certain, but TIME Washington Correspondent Dean Fischer, who covers the court, believes that the new bench will break little fresh judicial ground--thus dooming some far-reaching claims now before it. Fischer predicts that it will decide that capital punishment is an issue to be decided by state legislatures, not the Supreme Court--and executions may resume for the first time since 1967. Similarly, pleas by prison inmates claiming constitutional rights to legal assistance and contending that solitary confinement is cruel and unusual punishment will probably be resisted. The new bench is unlikely to agree that courts must provide lawyers for defendants in misdemeanor cases who cannot afford them. The contention of newsmen that they cannot be compelled to disclose confidential information to grand juries might also be rejected.

On the other hand, according to Fischer, Attorney General John Mitchell's claim that he can authorize wiretapping without a court order in investigating domestic subversives could be sustained. A requirement that a jury conviction in criminal cases must be unanimous may be found to have no constitutional basis.

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