Nine Minds of Its Own

By Bennet H. Beach

At term's end, the Burger Court still defies all labels

By now, the house that former Chief Justice Earl Warren built was supposed to have been reduced to ruins. The current Supreme Court, which includes four Justices appointed by Richard Nixon and one named by Gerald Ford, was expected to undo many of the far-reaching precedents that Warren's liberal court fashioned between 1954 and 1969 on race, defendants' rights and other explosive issues. Yet as Chief Justice Warren Burger and his colleagues packed their summer bags last week, appraisers of their latest term agreed on one thing, if on little else: while some parts of the Warren Court legacy were suffering from dry rot, others had been buttressed.

As a result, virtually every segment of society, every philosophical faction and special-interest group, had something to cheer about, and perhaps to jeer about as well. Antiabortion campaigners were rewarded with a politically touchy decision that will nearly eliminate Medicaid-financed abortions. Civil rights activists were pleased by the court's approval of a federal public works program setting aside 10% of funds for minority-run businesses, but dismayed by a decision that perpetuated a white-dominated electoral system in Mobile, Ala. Free-speech champions got more than they had hoped for in a ruling guaranteeing open criminal trials, but were stunned earlier by the court's support for sanctions against CIA Agent Turned Author Frank Snepp.

Since the Justices so frequently gave with one hand while taking away with the other, anyone intent on labeling the Burger Court has had to fight off a case of the whirlies. It has become fashionable to characterize the court as leaderless (all the more so since the December publication of The Brethren, the Bob Woodward and Scott Armstrong reconstruction of the court's inner workings that did for Warren Burger what Unsafe at Any Speed did for the Corvair). Paul Bender, a law professor at the University of Pennsylvania, argues that no single Justice "commands respect for his substantive ideas the way Harlan or Frankfurter did. The Justices are all off in their own little directions, and no one has the presence to make the others coalesce around him."

Such coalescences as do occur frequently do not add up to a clear or decisive majority. Of 50 major rulings issued this term, 34 were decided by a single vote or by a combination of plurality opinions. Even when the Justices agreed on the outcome of a case, they often disagreed about the reasoning that should lead up to it. In four critical cases handed down during its final week, the court splintered into 22 separate concurring and dissenting opinions. Such diversity, says Justice Department Lawyer Bruce Fein, "gives relatively little guidance to state and federal courts, elected officials or the private sector. It makes for an uneven application of the law."

Still, there are good reasons for some of the apparent inconsistency. The cases are hard, or they would not be there; and the Justices' cautious, case-by-case approach bespeaks a salutary absence of dogmatism. In addition, this court has inherited the tricky task of defining the limits to rights that the Warren Court set out broadly. For instance, given that intentionally segregated school systems are unconstitutional, exactly which remedies are acceptable? The court will find that some are sound and others go too far, but that does not necessarily mean the Justices are wandering the legal landscape without direction.

A summary of the term's major rulings:

Criminal Rights. The Burger Court, like the American public, has made no secret of its unhappiness over the number of criminals who go free because of restrictions on the admissibility of illegally obtained evidence. This year it availed itself of several opportunities to trim back those restrictions. In one case in which the Government had seized evidence illegally from one person, the court did not balk at allowing it to be used in the trial of another (U.S. vs. Payner). The safeguard against compulsory self-incrimination also came in for a little tightening: from now on, the prosecution can attack a criminal defendant's credibility by commenting on his prearrest silence.

In a more liberal vein, the court ruled that a suspect's right to counsel was violated when the FBI used a prison mate as an informer (U.S. vs. Henry), and the Fourth Amendment was found to bar police from entering a man's home to arrest him for a felony unless they have an arrest warrant (Payton vs. New York).

The Right to Sue. This is one area where the news was all good or all bad. "Until two years ago, you couldn't sue city hall at all," says Yale Law Professor Paul Gewirtz. Since then, a series of decisions, including several this term, has virtually shredded the doctrine of governmental immunity. A boon to citizens, perhaps, but a threat to already overloaded dockets. In Owen vs. City of Independence, the court refused to allow municipalities to duck certain civil rights suits by trotting out the defense that their employees had acted in "good faith." Then, in Maine vs. Thiboutot, the Justices ruled that under a Reconstruction era act, individuals could sue a state or one of its officers if they claimed that their rights under any federal law (in this case, a welfare statute) had been violated. In addition, winning plaintiffs in those cases can now make defendants pick up their legal fees.

First Amendment. The Justices upheld a California decision, based on the state's constitution, permitting petition drives in private shopping centers. They also threw out a municipal ordinance that limited door-to-door and on-street fund raising by "cause" groups (Village of 'Schaumburg vs. Citizens for a Better Environment). Corporations, meantime, got the green light to speak out more freely in cases involving utility companies that promoted nuclear power (Consolidated Edison Co. vs. Public Service Commission) and a greater use of electricity.

The most significant decision, Richmond Newspapers Inc. vs. Virginia, proclaimed for the first time that the First Amendment gives the press and public a right of access to criminal trials. The Justices seemed to be trying to reassure the press after last year's confusing Gannett decision, which, although occasioned only by a pretrial proceeding, was read by many lower courts as an invitation to close entire criminal trials.

The low point in the term for free-speech lawyers came in Snepp vs. U.S. The court ruled that former CIA Agent Frank Snepp must give the Government all his profits from an unauthorized book he wrote about his CIA experiences. Though the agency conceded that Snepp had revealed no classified information, the Justices upheld its claim that he violated a contract--required of all employees--giving it the right to block publication of any manuscript.

Race. Affirmative action took a large step forward when the court upheld a federal law that set aside 10% of certain public construction funding for minority-owned businesses (Fullilove vs. Klutznick). Of apparently critical importance was the fact that this was a narrowly tailored remedy drawn up by Congress; the majority offered no hints about how it might view such programs designed by federal agencies or by states.

The ruling gave some solace to civil rights advocates who had been disheartened by City of Mobile vs. Bolden. Mobile's blacks, who make up 35% of the population, have never been able to capture a seat on the city commission, because its three members are elected at large. Yet the court refused to impose election by district for various reasons, none of which attracted majority support.

Miscellaneous. While a 1973 decision allowing abortions still stands, many poor women will be unable to afford them, now that the court has upheld a federal law cutting off Medicaid funding of abor tions except in very limited situations (Harris vs. McRae). That decision followed by two weeks one that allowed the patenting of new manufactured forms of life, which should spawn even more laboratory activity in a field whose boundaries can only be imagined (Diamond vs. Chakrabarty). A federal regulation tightening the limits on how much benzene vapor can be in the air in work places was challenged in Industrial Union Department vs. American Petroleum Institute. The case offered a chance to decide whether the cost of industrial safety should be balanced against the benefits: money vs. lives. But the Justices, in striking down the regulation, left that issue for another day.

--By Bennet H. Beach Reported by Evan Thomas/Washington

With reporting by Evan Thomas

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