The Court Turns Back the Clock

...In constitutional terms, the principle embedded in the "equal protection of the laws" clause of the Fourteenth Amendment is being narrowed...

...The Eighth Amendment's cruel and unusual punishment provision, said Warren in 1958, "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society...

...The situation is exacerbated by other decisions cutting back on the "state" or "governmental" action concept, which in the 1940s had been expanded to cover political parties and even private corporations...

...Chief Justice Burger went to the extraordinary length of an unprecedented press conference last spring to deny that, but the facts of the decisions speak for themselves...

...We are today far from facing an emergency...

...The Court is now upholding governmental classifications under that clause which a few years ago would have been outlawed...

...The difference lies in the direction of the activism...

...Busing children as a permissible way to achieve racial integration of schools won the Court's unanimous approval in the Swann case in 1971 in an opinion written by Chief Justice Burger...

...it is an example of the several judicially nonenforceable provisions of the Constitution...

...One reason has already been mentioned: The American businessman, having lost his judicial protector, turned to Congress as a "super court of appeals...

...The Bill of Rights began to be enforced...

...Rehn-quist's opinion was too much for Brennan and Stevens, who wrote stinging dissents...

...The counterrevolution against protection of human rights began soon after the four Nixonites joined the Court...

...But against that trio of decisions stands Branzburg v. Hayes (1972), rejecting a reporter's claim to a First Amendment right not to testify before a grand jury on sources of a news article...

...others are being resurrected...

...Dooley, not only "follows the election returns," it anticipates them...

...Several areas are illustrative: First, it has become much harder to get into court...

...No justice has ever died from overwork...

...For the most part, judges are narrow-minded lawyers with little background in making social decisions...

...A new role had to be found, and after some tentative probing it was located in the protection of human rights and liberties—for the first time in American history...

...So it is, particularly since as recently as 1968 the Court had held, in Maryland v. Wirtz, that the Federal minimum wage law applied to state schools and hospitals...

...Warth v. Seldin (1975), ruling that minority residents could not challenge suburban exclusionary zoning practices...

...That conclusion is not really contradicted by some apparently libertarian decisions, such as the 1973 holding on abortion that recognized a right of privacy of pregnant women (a decision further buttressed this year), or the 1976 private school case, which held that blacks had a contract right to admission to private schools...

...The justices, as Earl Warren said when retiring, rely only on the Constitution and their consciences in giving meaning to the ambiguities deliberately inserted in the fundamental law...

...Privacy, furthermore, has been cut back by decisions permitting felony arrests without warrants and compelling individuals to hand all their business records, including documents that might be used against them, to the Internal Revenue Service...

...it was in control...

...A new birth of freedom for those long denied it, and a new decency of treatment for those never accorded it, became law...

...The justices march backwards...

...and Paul v. Davis (1976), barring access to Federal courts for admittedly unlawful police action...

...In general, the nine men are narrow-gauged legal mechanics with little feel for the social dynamics of their decisions and less compassion for the members of groups who only during the Warren years saw in the High Bench succor from the injustices visited upon them...

...Even the decisions protecting the press, moreover, may be analyzed on a "property right" theory—that the media owners cannot, because it is their private property, be required to print matter the publishers wish to suppress, and the publishers cannot be barred from publishing what they wish...

...They can in time be curbed by legislative or constitutional restraints if an emergency arises...

...A 1968 decision protecting union picketing in shopping centers under the First Amendment's freedom of speech proviso was limited in 1972 and abruptly overruled in 1976 in a classic instance of the preference for property rights over human rights...

...sometimes it is even more cavalier in overruling precedent...

...A stronghold of libertarianism has become a bastion of reaction...

...Again, a victory for property rights—the right of the businessman in commercial advertising...

...Miranda v. Arizona also came in 1966, a notable advance in judicial protection of criminal defendants...

...Nixon appointed Warren Burger as chief justice and Harry Blackmun, Lewis Powell, and William Rehnquist as associates...

...What was true was that members of disadvantaged groups employed the Court as an object of pressure-group tactics, and—amazingly, when seen in historical perspective—found an ally in furthering the causes of human decency and equality...

...The 1962 decision in Baker v. Carr meant that the "rotten boroughs" of state legislatures would be reapportioned to reflect population shifts...

...and in 1966 Federal power to regulate state elections was upheld...

...Unable to move the political organs of government, state or Federal, American blacks and then others triggered judicial responses to help rectify long-standing injustices and inequities...

...The Pentagon Papers Case (1971) invalidated the government's claim to secrecy, and gag orders issued by judges have been outlawed, as have state statutes according access to the media when a person is defamed...

...That decision was summarily overruled...

...Indeed, it is what it must do and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers...

...Beginning with its 1964 decision in New York Times v. Sullivan, when it had ruled that a public official must prove "actual malice" to win a libel judgment, the Court had steadily broadened the protection of the press against libel suits by "public figures...

...And it is here that the present Supreme Court resembles the Court of the late Nineteenth Century, which was characterized by then Solicitor General William Howard Taft as a group of "mummies...

...That being so, it is imperative that the quality of Supreme Court justices be high...

...The change was incremental, evolutionary rather than revolutionary...

...each takes at most only a few minutes for an experienced justice (one former justice has said he could do it in fifteen seconds...

...As conservative law Professor Philip Kurland of the University of Chicago put it last winter: "If the judiciary is to be the primary agency for social reform, shouldn't we be more concerned about the quality of the people we choose for judges...

...If President Ford has his way, however, the 1971 Swann decision will be either reversed or greatly limited...

...That meant that the justices had to draw upon the politically unpowerful for necessary social support—although that situation may now be changing...

...The difference lies in the direction . .. . " The Court Turns Back the Clock ARTHUR S. MILLER Members of "discrete and insular minorities," who for a few decades found in the United States Supreme Court the ultimate guardian of their rights, must now look elsewhere...

...Supreme Court decision on self-incrimination] is not persuasive authority in any state prosecution in California...

...Civil libertarians rejoiced—but too quickly...

...The Court became, as a consequence, an authoritative faculty of social ethics...

...the "activist" Warren Court has been replaced by an equally "activist" Nixon Court—but with different goals and results...

...What, then, of the future...

...Examples include Rizzo v. Goode (1976), where black citizens subjected to proven police abuse were denied the right to get a Federal court order establishing a police complaint procedure...

...But Nixon and Ford triumphed...

...Another extremely activist Federal district judge, Frank Johnson in Alabama, has rendered decisions giving greater protection to those in mental institutions and in prisons...

...As Burger said a few days later, "We took steps to arrest the denigration of states to a role comparable to the departments of France, governed entirely out of the national capital...

...Out of some 4,000 cases filed, only about 150 are decided each year "on the merits...

...I would lower technical barriers and let the courts serve that ancient need...

...Second, there can be little doubt that the man elected President in November will have from two to four appointments to the Supreme Court...

...Now and then the Warren Court holdovers—William Bren-nan, Thurgood Marshall, and Douglas—were able to convince the centrist wafflers—Potter Stewart and Byron White—to go with them...

...Furthermore, they are inordinately slow in getting their work done...

...Second, that "something deeper" probably is the substantive content of the decisions...

...But in 1937 the Court finally gave way to public pressure and validated the New Deal's social and economic legislation...

...But this has always been true: Since at least the time of John Marshall's bombshell decision in 1803 (Mar-bury v. Madison) which first established the principle that the Court is empowered to review legislative acts, judges have, in the guise of interpreting the law, acted as a continuing constitutional convention to update the fundamental law...

...I have found it a comfortable burden even in my months of hospitalization...

...People who have become accustomed to using the judiciary as a means both of "working within the system" and getting help against the indecencies of an urbanized and industrialized society are not going to be stopped merely because Richard Nixon succeeded in packing the Supreme Court with some mediocre lawyers of small intellect and an even smaller instinct for compassion...

...The conservative bias of the Nixon Court thus could be abruptly changed, provided that the new justices are carefully selected...

...Kurland said, at the end of the Court's term in July 1976, that he would find it difficult as a law professor to give passing grades to many of the opinions written by the justices...

...The justices, economist John R. Commons wrote in 1924, spoke as "the first authoritative faculty of political economy in the world's history," finding in the nebulous words of the Constitution authority to protect "vested rights"—in other words, property rights...

...A unique combination of Franklin D. Roosevelt and Dwight D. Eisenhower appointments coalesced to further human rights more than at any other time in American history...

...something deeper must be at work...

...First, judges on other courts, even including lower Federal courts, ostensibly bound by Supreme Court decisions, will be the continuing target of those trying to further the causes of due process and civil liberties...

...Until about 1937, the Court's principal objective was to protect the rights of property—the interests, that is, of the moneyed class...

...In essence, rights to more equality and to decent treatment from government Arthur S. Miller is professor of constitutional law at George Washington University...

...Judges are indeed accorded vast discretion, despite the myth to the contrary...

...During Earl Warren's tenure (1953-1969), the Court was such a leader of legal and social change that Adolf Berle could characterize it as holding "ultimate legislative power" and Abe Fortas could call it "a revolutionary committee...

...The Nixon Court was not only born...

...Until that occurs, however, the trend established by the Nixonites no doubt will continue...

...Civil rights and civil liberties are in retreat, buffeted by decisions that are both logically arbitrary and sociologically unwise...

...were found lurking in the majestic generalities of the Constitution of 1787 and the Civil War Amendments...

...The justices temporarily abdicated their position as ultimate guardians of property and privilege...

...Although the beginnings of the Court's new posture came in the early 1930s, it did not speak until the 1950s and 1960s, when Earl Warren was chief justice...

...Rights of prisoners have been so sharply curtailed in 1976 that Justice Stevens was moved to say that the Court had reduced them to a "slave" status...

...The opinion was written by Justice Rehn-quist, who managed to persuade Stewart to join him...

...what it has done is to make new law and new public policy in much the same way that it has done in the course of interpreting the other great clauses of the Constitution...

...Milliken was a 5-to-4 decision, but there is no reason to believe that it will be overturned...

...That the charge was untrue did not deter him...

...Important victories were won, both in the procedural rules of the courts and in the substantive decisions...

...This is indeed what the Court historically has done...

...Supreme Court...

...The net result is, in the words of Senator Tunney, "many Americans—consumers, taxpayers, minorities, women, civil libertarians—are dissatisfied by the justice system...

...That, however, was never really true...

...When the Supreme Court does (all too rarely) rule adversely to business, those decisions are often neatly overturned by Congress—as in the Bank Merger Act of 1962 and the Newspaper Preservation Act of 1970...

...One need not be a cynic, however, to note that it is precisely in the areas of human liberties and rights that the justices have, by their own action, eliminated cases from their workload...

...The Miranda v. Arizona landmark decision on the right to counsel is being chipped away, as are protections against unreasonable searches and seizures...

...Third, beginning not later than 1971 the rights of criminal defendants have been eroded...

...for example, in Michigan v. Mosley (1975) he noted "the emerging trend among high state courts of relying upon state constitutional protections of individual liberties— protections pervading counterpart provisions of the United States Constitution, but increasingly being ignored by decisions of this Court...

...when he departed in 1969, the target became Justice William 0. Douglas, the defiant liberal...

...Brennan and Marshall, joined occasionally by Stevens and Stewart, will be even more an embattled and embittered minority...

...but enough are to make what the nine men in Washington do of somewhat less significance...

...I believe that the late Justice Hugo Black would have been appalled at Burger's candid foray into political theory...

...Economic policymaking, for example, was silently and probably permanently ceded to Congress and the President...

...Having the assistance of so many clerks has contributed to the extraordinary length of many of the opinions...

...Again, the process has been evolutionary...

...Examples include Laird v. Tatum, a 1972 decision that held that the Army's clandestine surveillance of American citizens did not present a "justiciable controversy," and United States v. Richardson, a 1974 decision blocking a suit to make public the CIA's budget...

...His book, "The Modern Corporate State: Private Governments and the American Constitution, '' has just been published by Greenwood Press...

...Another example appeared in People v. Disbrow, a 1976 decision of the California Supreme Court: "We . . . declare that Harris [a U.S...

...Finally, the "commercial speech" doctrine has been expanded: For the first time in history, advertising was held to be protected by the First Amendment—for, as Blackmun said, "however tasteless and excessive it sometimes may seem," it is "nonetheless dissemination of iriformation...

...The principle on which the holding rests is difficult to perceive...

...Richard M. Nixon is alive and well—and reigning in the Marble Palace...

...There should have been little wonder, then, that Nixon campaigned in 1968 on a promise to "reform" the Supreme Court, which he asserted had been soft on the "crime forces" of the nation...

...This conclusion is buttressed by cases making it harder to prove governmental discrimination—plaintiffs must now show motive as well as impact—and watering down the Voting Rights Act of 1965...

...The Nixon Court is as "activist" as was the Warren Court...

...We pause to reaffirm the independent nature of the California constitution and our responsibility to separately define and protect the rights of California citizens despite conflicting decisions of the U.S...

...Each one now has at least three law clerks to do the spadework for him...

...The judiciary for a brief time was the last, best hope of furtherance of the human values that many believe are a part of American constitutionalism...

...The basic conservatism of Americans—or at least of their leaders and those who control the mass media—found expression in an uneasy feeling that Federal judges were going "too far...

...To be charitable, the refusal to rule or to accord Federal protection against local officials' lawlessness may be attributable to a sincere concern, expressed mostly by Burger, that the Court has too much work to do...

...From the beginnings of the republic, vested rights was the basic doctrine of our constitutional law...

...The new judicial conservatism is essentially anti-libertarian...

...and the American dream teaches that if one reaches high enough and persists there is a forum where justice is dispensed...

...Further, principles of federalism—of long-buried "states' rights"—have been resurrected to bar Federal lawsuits in civil rights...

...Class actions"—lawsuits in which one person sues in the name of and for many others, a "class"—have been made more difficult...

...Not all states, of course, are as compassionate or as broad-gauged as, say, the California and New Jersey supreme courts...

...On both procedural and substantive issues, individual rights and liherties are being curtailed by the Supreme Court...

...So far as the Court's workload is concerned, William 0. Douglas, in one of his last dissents, pinned Burger's tail to the wall, saying in Warth v. Seldin that the facts of the case "reflect festering sores in our society...

...Is it mere coincidence that the Rizzo, Warth, and Paul cases mentioned above all involved attempts by black Americans to get judicial relief...

...The conclusion is inescapable: Human rights and liberties, insofar as they get protection from the Supreme Court, are in retreat...

...A ready example is the Rodriguez case in 1973, when the Nixonites prevailed 5-to-4 to validate a wide disparity in funding school districts in Texas...

...Capitalism was, as Felix Frankfurter once observed, the focal point around which most of American constitutional law was developed...

...That Douglas is correct should be obvious...

...they failed to realize that what one Court wrought another could undo...

...In one area the Nixon Court has been fairly consistent —protection of the freedom of the press...

...The lasting legacy of Richard M. Nixon is a hard core group of four "strict constructionists" who now dominate the High Bench...

...But it is probable that by the end of 1976 or early 1977, several hundred Americans, mostly black, will be officially killed...

...Some lower court judges, however, still pursue the Warren Court line—joined at times by some state judges...

...Civil libertarians thus are looking more and more to state courts for protections being denied by the U.S...

...Supreme Court interpreting the Federal constitution...

...The Court has again returned to the status quo ante by telling Congress how it may regulate commerce even though the Constitution expressly gives that power to Congress...

...It began, perhaps, in the Scottsboro case (1932), when the Court held for the first time that criminal defendants in a state trial were entitled to counsel (since 1791 guaranteed by the Sixth Amendment in Federal trials...

...After all, even the Nixon Court refused this year to review Judge Arthur Garrity's busing decision in Boston...

...The High Bench must husband its resources and select the cases it rules on with care, which means that the vast majority of lower court decisions, both state and Federal, will stick...

...Within thirty-five years most of the Bill of Rights had been "nationalized" by the Court—held to be within due process of law protected by the Fourteenth Amendment against actions of state governments...

...A neo-conservative American elite has its neo-conservative judiciary, headed by a group of nine men whose intellectual shortcomings and lack of understanding of the realities of society have become all too obvious...

...Civil rights and liberties are alive and well in some of the states...

...Finally, for the first time in decades the Nixonites overruled Congress on a commerce clause issue— whether minimum wage laws should be applied to city employes...

...Technical rules of "standing," referring to the status one must have to use the courts, are being sharply tightened after a brief period of expansion in the 1960s...

...but the 5 to 4 margin prevailed only because Blackmun, with apparent reluctance, separately concurred...

...Burger has been notably unsuccessful in bringing efficiency to the Court —rather odd for a man who patterns himself on William Howard Taft in his devotion to court administration...

...It simply cannot be the number of decisions that is the source of difficulty in the Court's administration...

...Know Nothings of the lunatic fringe wanted to impeach Warren...

...Said Stevens: "The Court holds that the Federal Government may not interfere with a sovereign state's right to pay a substandard wage to the janitor at the state capitol...

...That decision and Hills v. Gautreaux, the Chicago case which permits a metropolitan solution to housing segregation, do little to remedy the running sores of racism...

...But in so doing it lost one of its most important supporters—the American businessman— who continued to manipulate Congress and captured the administrative agencies and commissions...

...This makes the choice of the President of even greater importance this year, for Brennan and Marshall probably will leave the bench, as will Powell and Blackmun...

...The justices have time to write (or at least review what their clerks write), and the resulting opinions would, as a general rule, be greatly improved if cut in half or even more...

...The "harmless error" doctrine, which ignores small procedural errors, has been loosened so much that criminal trials are reverting to the status quo ante Chief Justice Earl Warren...

...When Douglas resigned for health reasons in 1975, Ford replaced him with a colorless corporation lawyer, John Paul Stevens...

...Justice Byron White candidly admitted as much while dissenting in Miranda v. Arizona: It is obvious, said White, "that the Court has not discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources...

...More than 95 per cent of the decisions are summary denials of review...

...No executions have yet taken place, because Justice Powell issued a stay pending a petition for the Court to rehear the matter...

...The first has not been reversed, and it is doubtful that the second will be reviewed by the Supreme Court...

...That trend has now been reversed in a case which held that a prominent society matron was not a "public figure" and was, therefore, entitled to claim libel damages...

...Justice Brennan knows this, for he has all but told lower court judges to go their own way...

...the Supreme Court, pace Mr...

...Nixon's minion, Gerald R. Ford, dutifully obeyed his master by leading an unsuccessful fight to impeach Douglas...

...The "white primary" cases of the early 1940s led through Shelley v. Kraemer in 1948 (on racial covenants in property deeds) to the ultimate legal freeing of black Americans in Brown v. Board of Education in 1954...

...That wave of judicial activism is now receding, rapidly in some sectors, more slowly in others...

...The latter holding is particularly piquant, for the Constitution expressly provides that a public accounting must be made "of all public money...

...Judge-made procedural rules governing access have been tightened...

...For in all frankness, no justice of this Court need work more than four days a week to carry his burden...

...It is for that reason that greater care should be taken in their selection...

...If the abortion decisions prove anything, it is that they are exceptions to the general trend and also that, when it wishes, the Nixon Court can be more "activist" than the Warren Court...

...The admission of a few blacks to private schools does nothing for the less affluent in the ghettos...

...But soon the pendulum began to swing the other way, particularly in 1974 when in Milliken v. Bradley, the Detroit case, busing across political boundaries was barred...

...The last, best chance for the lone individual to trigger a positive governmental response began to be blocked...

...The present Supreme Court has no intellectual star of the quality of Brandeis or Frankfurter, of Holmes or Black, of Jackson or Harlan...

...Those procedural holdings are joined by the decision in the death penalty cases to uphold some state statutes and strike down others...

...Civil rights provide the obvious illustration: The Nixon Court is retreating, slowly but steadily, from the judicial furtherance of the rights of disadvantaged Americans— mainly blacks...

...Two factors bear mention...

...The Supreme Court justices today are noticeably less liberal than some (but far from all) lower Federal judges...

...Wyman v. James (1971), for example, permits a warrantless search of a welfare recipient's home—despite the Fourth Amendment...

...New juristic theories of politics are being created...

...In May 1976 hearings before Senator John Tunney's Subcommittee on Constitutional Rights, a spokesman for the American Civil Liberties Union asserted that "the current Supreme Court has made a mockery of the notion of direct and uncomplicated access to Federal courts...

...That is what has been happening since Earl Warren was replaced by Warren Earl Burger—not entirely, but sufficiently to make it a definite trend...

...The Court, however, did move back, in 1976, toward a more stringent interpretation of libel laws...