Politics at Court

"Such 'Disneyland' contentions are becoming commonplace," wrote the angry court of appeals judge in 1965 as he turned down what he considered to be a frivolous claim: that a defendant in a lineup has a right to have his lawyer present. Two years later Earl Warren's Supreme Court made that Disneyland contention the law of the land. Five years after that, with the angry appeals judge now sitting as Chief Justice of the U.S., the Supreme Court had hedged the lineup right substantially.

The lengthening catalogue of legal shifts that have occurred since Warren Burger took over the court is described in a new book by Lawyer and TIME Correspondent James F. Simon. In His Own Image: The Supreme Court in Richard Nixon's America (McKay; $7.95) is the first comprehensive study of the latest transformation of the nation's highest bench. As such it is a thoroughgoing, readable and up-to-date supplementing of Mr. Dooley's 1901 observation that "no matther whether th' Constitution follows th' flag or not, th' Supreme Court follows th' iliction returns."

And when the Justices don't, the President does. Nixon's failed nominations of Clement Haynsworth and G. Harrold Carswell were hardly the first presidential efforts to strike a geographical balance. George Washington, Simon notes, named "to his first court three Northerners and three Southerners." Abraham Lincoln complained that Justices "trample on the rights of others"; he chose men for the high bench largely because they agreed with him. In general, Simon notes, whenever "the U.S. has faced political, social or economic crises on a broad scale, Presidents have felt a greater compulsion to control the court."

Thus the only unique aspect of Nixon's court picking was his specific law-and-order resolve to "strengthen the peace forces as against the criminal forces." But Nixon can only choose the Justices; the power to decide cases remains with them. Simon clearly illustrates the different uses of that power in two fine and scrupulously fair portraits of Earl Warren and Warren Burger, the lookalike, think-apart Chiefs. Warren is shown cutting through the legalities to ask "But is it fair?" In his opinions Warren "galloped past the problems to his conclusion," Simon observes. He exemplified "honesty, fairness, patriotism and idealism."

The Warren Court, says Simon, "wanted to teach the nation its deepest purposes and meanings. It is that special role that the Burger Court neither serves nor covets." Paradoxically perhaps, Warren, the California Governor and lifelong politician, brought to the bench an expansive and unremitting belief in the strength and power of the law; Warren Burger, the longtime lawyer and judge, came to the court believing that true strength and power reside in the political process. Change in the U.S., he has said, "is a legislative and policy process. And there is a very limited role for courts in this respect." Simon points out that Burger lives up to the implications of his philosophy by being a far more dedicated off-the-bench crusader for prison and court reform than Warren ever was.

But Burger does not hew to the scholarly tradition of true "judicial restraint." Indeed, says Simon, the President did not want more judicial restraint, as he frequently claimed. He wanted politically conservative Justices who would be as assertive in rolling back new rights as the Warren majority had been in establishing them. Simon contends that in at least three out of four of his choices, Nixon got what he was looking for. William Rehnquist, for instance, "is an activist every bit as tenacious as William Douglas."And Harry Blackmun, like the Chief Justice with whom he almost always votes, also seems willing to follow his inclinations even when precedent seems to lie in the other direction. Perhaps only Lewis Powell, among the Nixon nominees, is a true exponent of judicial restraint.

With holdover Justices Byron White and Potter Stewart also tending toward that view, the court seems to have taken a right turn in criminal cases. As Simon puts it, 4N + X = L.A.O.--that is, four Nixon nominees plus White or Stewart equals law-and-order. Surprisingly, there has been little erosion of desegregation decisions or of one-man, one-vote reapportionment cases. Indeed, "except in the criminal area, the individual rights won under the Warren Court still stand." But, in Simon's judgment, "for the new interest groups, such as environmentalists, the new court direction suggests that they may have to look elsewhere for relief."

Simon himself obviously favors Warren activism over the Burger variety. But that preference never controls his selection of important facts or his outlining of the legal reasoning on both sides. For that quality alone, his book should have a priority rating for anyone with more than a passing interest in the court today. Tomorrow's constitutional historians will certainly have to begin with his text when they record their final judgments on the Burger era.

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