A Farewell Barrage from the Court

The U.S. Supreme Court often saves the best for last--waiting until the final days of its annual term before issuing the bulk of its most significant and difficult opinions. Before embarking last week on a three-month summer recess, the Justices issued a barrage of orders and decisions on the last of 176 cases considered during the 1976-77 term. The key ones:

NO TO NIXON. When President Nixon helicoptered into retirement in 1974, he left behind a mountain of 42 million pages of White House documents and 880 tapes that might or might not answer the many riddles of Watergate. Though no law governed the ownership of such documents. Presidents from Washington to Johnson have considered their papers as personal property, and so Nixon's lawyers negotiated a deal with Arthur F. Sampson, a Nixon appointee still heading the General Services Administration. The Government was to ship Nixon's "presidential materials" to a warehouse near San Clemente, and Nixon could veto anyone's access to them. After ten years or Nixon's death, the GSA would destroy the tapes. Congress thereupon passed a bill authorizing seizure of the Nixon papers and making them available for any court proceeding and--eventually--to the public. Nixon sued.

In a 7-to-2 vote, the Supreme Court last week rejected five separate arguments by Nixon that the law violated his constitutional rights and, unfairly, applied only to him. Senior Associate Justice William J. Brennan Jr. declared that Nixon was "a legitimate class of one," a proper target for special treatment by Congress because of the danger that Nixon might destroy evidence.

Chief Justice Warren E. Burger strenuously dissented, arguing that the majority decision "invaded historic, fundamental principles of the separate powers of coequal branches of government." Burger added that the verdict "may well be a 'ghost' at future White House conferences, with conferees choosing their words more cautiously because of the enlarged prospect of compelled disclosure to others." Dissenting Justice William H. Rehnquist was equally vehement: "Today's decision countenances the power of any future Congress to seize the official papers of an outgoing President as he leaves the inaugural stand."

But Brennan's opinion carefully underlined the singularity of the Nixon case, attributing the law to "a context unique in the history of the Presidency." Two of the six concurring Justices forcefully reiterated that the law set no precedent for future congressional dealings with departing Presidents.

As a practical matter, the decision will not open the Nixon material to public view in the near future. Government archivists will require several years to screen the documents, and further legal proceedings could delay any disclosures. The Supreme Court is scheduled to decide next year whether Nixon tape recordings played at the Watergate cover-up trials may legally be reproduced, broadcast and sold to the public.

NO DEATH FOR RAPISTS. In its continuing refinement of the rules governing capital punishment, the court decided that executing a convict for raping a woman was "grossly disproportionate and excessive," and thus forbidden by the constitutional ban on cruel and unusual punishment. The solid 7-to-2 majority suggests that death may eventually be ruled out as punishment for any crime in which no human life is taken--including rape of a child, kidnaping, skyjacking and treason.

The decision spared the life of Ehrlich Anthony Coker, 28, a convicted murderer who escaped from a Georgia prison and raped a 16-year-old housewife at knife point (TIME, April 11).

Georgia was the only state with the death penalty for rapists of adults (Florida and Mississippi can inflict it for the rape of children), and the decision directly affects a mere half-dozen convicts, but it also forestalls any nationwide drive to restore capital punishment for no-death crimes.

Burger, again joined by Rehnquist, dissented vigorously, arguing that rape "inevitably causes serious psychological as well as physical harm." But Justice Byron White, in the majority opinion, insisted that although "rape is without doubt deserving of serious punishment ... it does not compare with murder."

THE HUMAN CANNON BALL. When Hugo Zacchini, a "human cannon ball" who performs at fairs, sued owners of a Cleveland television station for broadcasting his spectacular flight without permission, legal observers predicted that Zacchini would be squashed in court. After all, the circus had been big news in Burton, Ohio, at the time, and news coverage is protected by the First Amendment. Both the trial court and the Ohio Supreme Court ruled against Zacchini, dismissing his claim even though state law gave him "the right to the publicity value of his performance."

But a narrow 5-to-4 majority of the U.S. Supreme Court endorsed Zacchini's arguments. An opinion by Justice White ruled that the 15-second news clip appropriated the "performer's entire act," in effect stealing its commercial value. The decision drew heavy fire from dissenting Justice Lewis F. Powell, who labeled the filming "a routine example of the press fulfilling the informing function so vital to our system."

Zacchini is not in the safety net yet. He must now return to Ohio courts to prove his claims of $25,000 in damages.

JOBS WANTED. Newspaper readers in several U.S. cities were greeted last week by an entirely new type of advertisement, featuring phrases like "uncontested divorce, $250." The notices, restrained and even demure, were the first reactions to a Supreme Court opinion ending the general ban on overt solicitation of business by attorneys.

The decision had been widely anticipated because the court had previously killed the ban on price advertising by pharmacists and the maintenance of minimum-fee schedules for lawyers. But the vote was far closer than expected. Only four other Justices joined Harry A. Blackmun's majority opinion, which ruled that First Amendment guarantees of free speech protect "advertisement of a standardized fee" for "routine legal services" only.

Justice Powell, a former American Bar Association president, protested in dissent that opportunities for deception by unethical lawyers were expanded by the decision and chances of effective regulation were reduced. Predicting "profound changes in the practice of law," Powell expressed regret that alternative "diligent and thoughtful efforts by the organized bar" toward making legal services more available to middle-income Americans were not given a chance before price advertising was sanctioned.

The test case was filed by two young Phoenix attorneys, John R. Bates and Van O'Steen, who placed an ad in the Arizona Republic last year, giving prices for services at their legal clinic. A state court, enforcing bar rules similar to those effective in every state except Maine, censured the two.

Despite ominous warnings from the organized bar, the practical effects of new legal advertising will be limited. Prestigious firms will indulge in very little price posting, and the majority decision allows bar associations to place "reasonable restrictions" on unseemly ads and to ban "false, deceptive or misleading" notices altogether.

ABORTING MEDICAID FUNDS. In two one-sentence orders without a recorded dissent, the court last week cleared the way for removal of all federal Medicaid funding for elective abortions. U.S. Judge John F. Dooling Jr. of Brooklyn, who had ruled unconstitutional a law banning Medicaid payments for nontherapeutic abortions, was ordered to reconsider in light of the court's anti-abortion decision of two weeks ago (TIME, July 4). That ruling permitted individual states to cut off Medicaid for elective abortions if they desired, but the court now apparently will allow Congress to eliminate federal funding for such benefits across the country--perhaps by the end of summer.

MORE DESEGREGATION TOOLS. When the Supreme Court agreed to hear arguments on a school desegregation plan involving extensive busing in Dayton, civil rights leaders feared that the court might use the case to cut back sharply on lower courts' power to order effective desegregation plans. Last week the court did reject the Dayton busing plan, at least temporarily. Before any city-wide desegregation remedy can be ordered, the Justices unanimously ruled, the trial court must first determine that local authorities engaged in illegal segregation practices that have a city-wide impact. In the process, however, the high court specifically endorsed the power of a district court judge to order cross-city busing if necessary. And in an unexpected decision involving Detroit schools, the court unanimously declared that federal judges could also order remedial education programs, like special reading classes, to help students recover from the effects of illegal segregation.

Drawing conclusions about the court's past term is not easy. The Justices' drift tends to be rightward, favoring property rights and turning cautious in providing redress for the poor. The court generally opposes judicial activism, favoring legislative settlement of conflicts. This year, at least, it has made no real landmark decisions, and law professors tend to judge it harshly. "The court is without leadership." says the University of Chicago's Philip Kurland. "It's run by a five-man center" (Stewart, White, Blackmun, Powell and Stevens). The University of Virginia's A.E. Dick Howard agrees: "None of the central five has an overriding judicial philosophy. They decide cases as they come." Adds Yale's Bruce Ackerman: "A sweeping moral vision guiding the nation? It's just not something we're going to see from this court."

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