Justice in Arrears

The Supreme Court, like many lower courts in the land, is mortifyingly behind in its work. Only once has the court found it necessary to delay beyond the end of June adjudication of a case argued during its regular nine-month term. That came two years ago in the Detroit cross-district school segregation controversy, a case of extraordinary complexity. Moreover, the Justices were then on the threshold of one of the most important cases in Supreme Court history, the U.S. vs. Richard Nixon. But even with eleven decisions announced last week, the court still has not rendered judgments in 72 of the 179 cases argued this year. Thus an unprecedented spillover of court decisions into July appears increasingly inevitable.

What has gone wrong? Chief Justice Warren Burger has long complained that the high court workload is too much for nine mortal judges, and that some way must be found to reduce the burden, such as a new intermediate National Court of Appeals or a statutory reduction in Supreme Court jurisdiction.

That is Burger's diagnosis. Some staff personnel at the court privately offer three ad hominem explanations for the slowdown: the Chief Justice himself, Associate Justice Thurgood Marshall and Associate Justice Harry Blackmun. Burger's numerous off-court activities have cut sharply into his time for court work. Justice Marshall has been frequently ill this term, and the work of his law clerks on whom he has relied in the past for excellent writing has been uneven.

Frequent Forays. The prime offender, however, is seen to be Justice Blackmun, a slow writer and ponderous thinker, who not only weighs his opinions meticulously but writes them out in longhand. An extremely effective and popular public speaker, Blackmun has made frequent forays on the creamed chicken circuit all over the country this spring. Before tackling the court's work this week, he was off to Emory University in Georgia to accept yet another honorary degree. While the six other full-term Justices on the court have each published between ten and 13 majority opinions, Marshall has announced only seven and Blackmun but six.

Of eleven decisions handed down last week, one involving airline overbooking gladdened every passenger who has ever been bumped off a flight (see box). Other noteworthy cases settled:

> In a split (5-4) decision, the court found that state, county and city governments have wide authority to fire their employees without first granting due process protections of specific charges and hearings. Government workers, wrote Justice John Paul Stevens for the majority, have no property interest in their jobs unless state law specifically so provides. "We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs."

> In a 7-2 decision (Brennan and Marshall dissenting), the court indicated a perceptible shift, still somewhat unclear as to practical effect, in the course of race relations law charted by the Warren court. The case came up on a challenge of the District of Columbia police department's use of "test 21," a verbal skills exam widely administered by federal civil service officials to government job applicants. The evidence was that from 1958 to 1971, 57% of blacks who took the test failed, against only 13% of whites. Speaking for the court majority, Justice Byron White held that if a law or act of government is "neutral on its face," and if it serves purposes which the government may pursue, it is not necessarily unconstitutional, though it affects one race more than another.

"Any other conclusions," said White, "would be far-reaching and would raise serious questions about ... a whole range of tax, welfare, public-service regulatory and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white."

By unanimous vote, the court came down on the side of the endangered pupfish against Nevada ranchers and 16 Western states. Both the pupfish, an inch-long fish so named because of its puppylike antics, and the ranchers use the fresh waters of Devil's Hole, a deep limestone cavern on federally owned land near Death Valley. The more water the ranchers pump out, the more the pupfish, a species found only in Devil's Hole, are threatened. The local ranchers were joined by the 16 states in resisting the federal claim to control overground water near the underground lake, which was proclaimed a national monument by President Truman in 1952. The court ruled that the ranchers may no longer pump underground water in a way that would lower the level of the Devil's Hole pool to the peril of the pupfish.

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