In a Louis Harris survey last year, 31 of 100 Americans expressed a "great deal of confidence" in the Supreme Court.Among 16 major social institutions, only medicine, higher education and organized religion did better. The White House and Congress did worse.
This year, while the other branches of government have slumped, the court probably has maitained and possibly has enhanced its standing.
To be sure, the nine justices always have some wondrous things going for them, including a reverential awe induced in the citizenry by white marble and black robes, a mystical aura of inflability induced by finally, and a judicial euphoria induced by the power to determine public policy without having to run for election. But a look at the approximately 130 decisions announced in the term just ended shows that there's a good deal more to it than.
Most importantly, the court repeatedly adopted, refined or extended centrist positions. Put another way, it shunned extremism, deferred to Congress and the Independent agencies, strengthened law enforcers while sometimes helping defendants, embraced conventional manners and mores, ducked some hard cases, and, but and large, neither excessively pleased nor intolerably affronted major institutions or constituencies.
"The court adjusted boundaries," said constitutional law professor A.E. (Dick) Howard of the University of Virginia, who is writing a book about the court under the stewardship of Chief Justice Warren E. Burger. "A lot of line drawing was going on in this term," he told a reporter.
Even the American Civil Liberties Union, which openly had all but despaired of the "Burger court," praised it, citing three decisions that "will have a profound impact in maintaining the role of the federal courts as the nation's most important instrument for protecting constitutional rights."
One of the decisions concerned municipalities whose official policies or customs have allowed police officers or other employes to violate citizens' constitutional rights. Under a 1961 ruling, such municipalities were immuned from lawsuits.With only Burger and Justice William H. Rehnquist dissenting, the court voted 7 to 2 on June 6 to end that immunity.
Another decision praised by the ACLU upheld an award of fees for attorneys who succeed in vindicating civil rights denied by a state agency - in this case, the Arkansas unit responsible for violations of the rights of large numbers of prisoners. But prisoners in at least 10 other states also will be helped.
It mattered greatly that the four justices appointed by President Nixon voted together much less often that they had before and, more importantly, split on more truly important issues.
Two of them, Justices Harry A. Blackmun and Lewis F. Powell Jr., and President Frod's appointee, Justice John Paul Stevens, who has been on the bench only 2 1/2 years, several times took the court toward the center, by creating and sometimes leading narrow majorities.
Much of the foregoing is illustrated by the case of Allan P. Bakke, but let's set in aside for the moment in favor of other revealing but less publized cases.
Take the 5 to 4 decisions on June 29 that high-level federal officials - possibly the president - can be sued for knowingly and wilfully violating constitutional rights. This ended obsolute immunity for executive officials who use discretionary power to order, say "warrentless and forcible entries into a citizen's home in the pursuit of evidence."
The quoted words were those of Justice Byron R. White, who was named to the court by President Kennedy. He wrote them six years after Watergate. They expressed a view-point that was repugnant to perhaps above all others, Richard M. Nixon. But two of the justices who joined White Blackmun and Powell, were, as noted, Nixon appointees. That they voted to make the highest officials accountable, by qualifying their immunity, was, said George Kaufmann, a close observer of the court, "a reflection of the Zeitgeist."
Surely the spirit and outlook of the times were reflected again in the prevailing opinions in the death penalty and so-called "dirty words" cases last Monday, the final day of the term.
Capital punishment in the view of Justices William J. Brennan Jr. and Thurgood Marshall, is always cruel and unusual punishment and consequently violates the Eight Amendment.The court majority, while rejecting this view in 1972, also held that if the death penalty is to be imposed, it cannot be imposed freakishly - without sentencing guidelines.
In 1976, the court upheld the sentencing guidelines approved by three states while finding that mandatory executions for certain crimes are capricious and, under evolving contemporary standards of decency, impermissibly cruel and unusual. Then, a year ago, with only Burger and the fourth Nixon appointee, Justice Rehnquist, dissenting, the court held that the Eight Amendment prescribes the punishment of death for the crime of rape in all circumstances.
Meanwhile, the country has displayed no zeal for executions. Even though nearly 500 convicts are currently on death rows, only one (Gary Gilmore in Utah) has been executed in the last six years.
It may be coincidence that, in this climate, the court's latest decision on capital punishment extended its search for a stable middle ground by making the imposition of capital punishment more difficult. Specifically, the court rules that the states must allow a sentencing judge to consider in mitigation "any" aspect of a character or record, and any circumstance of his crime that he proffers as a basis for mercy.
it also may be coincidence that the chief justice wrote the opinion, for a plurality, on the issue of mitigating factors. But according to Prof. Howard, an expert on the "Burger court," the death penalty decision was "a classic case" of ruling out extremes.
In the "dirty words" case, the court ruled that when a broadcaster has used a "uniquely pervasive" medium to air words crudely depicting excretory and sexual activities and organs, and has done so at a time - early afternoon - when children were "uniquely accessible," the First Amendment did not deny government "any power . . . in any circumstances" to put a cloud over the broadcaster's license.
In holding that under the Constitution the electronic media must remain less equal than the print media, Justice Stevens adopted a view that aroused Brennan, joined by Marshall, to denounce a "patent" misapplication of "fundamental First Amendment principles."
The majority was transmitting a not very subliminal message of its own:the court was not about to construe the First Amendment in a way that large numbers of Americans might see as extreme because it could allow broadcasters required by law to serve the public interest to carry vile language to their children.
In another part of the First Amendment spectrum, the court narrowly avoided another extreme - no access to the public, therefore no access to journalists - with one of the many decisions that sent chills through the press.
The case involved a sheriff who interpreted two 1974 opinions for the court by Justice Potter Steward to mean that he could conceal jail conditions from the press by concealing them from the public.
Stevens, joined Brennan and Powell, said that the policy intolerably abridged freedom of the press. But Burger, joined by White and Rehnquist, said that the press has no "special privilige of access."
Steward held the swing vote. He cast it by agreeing with Burger that the right of access to information that the government makes available is no greater for the press than for the public. But, he said, equality of access must be sufficiently flexible to meet the practical needs of journalists - electronic as well as print.
Steward's bridging of the chasm proved to be a kind of stage-setter for the far more volatile Bakke case, which also evenly divided the justices into two wings. One, led by Brennan and included Blackmun, along with White and Marshall, held that the 14th Amendment legitimated not only affirmative action plans generally, but also the University of California at Davis set aside 16 of 100 slots in each class for racial minorities. This regid quota kept out Bakke, who is white.
The other wing, led by Stevens and included Burger, Rehnquist and Stewart, held that as recipient of federal funds, the university had disobeyed the command in the Civil Rights Act of 1964 to discriminate against "no person." Solely on the basis of the act's Title VI, Stevens wanted to affirm the judgement of California's highest tribunal that the school must admit Bakke.
It was Powell - the remaining Nixon apointee - who constructed a bridge between the wings.
From Bernnan he took the principle that the 14th Amesndment allows race, among other factors, to be taken into account, to remedy past discrimination or, Powell said, to achieve diversity in the student body.
From Stevens he took the order of the school to admit Bakke, agreeing that the rigid Davis quota was impermissible.
Powell's creation impressed Harvard constitutional law professor Lawrence H. Tribe as "an act of statecraft." Others saw it as frayed patch-work. But there was also no unaminity about the Brennan and Stevens opinions.
No one knows yet if Powell's bridge will hold. But few doubt that it is well inside the divisive poles of abolition of affirmative ction or validation of clear-cut "reverse discrimination."
In upholding the Endangered Species Act in the snail darter case, Chief Justice Burger celebrated the duty of the justices to put aside their "individual appraisal of the wisdom or unwisdom" of a law. "Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end," he said.
Divining the intent of Congress is not always easy, Burger's divination in snail darter was hopelessly at odds with Powell's. In Brakke similarly, Stevens' insistence that Congress intended the civil rights law to be color blind was met by Brennan's insistence that Congress intended to replicate the 14th Amendment, which undeniably was adopted to help blacks overcome the legacy of slavery.
In several important cases, however, the court did discern a clear congressional intent and did hew to it, nowhere more forcefully than in a decision involving the safety and necessity of nuclear power. Denouncing "judicial intervention run riot," Justice Rehnquist, in an opinion for a unanimous court, wrote:
"The fundamental questions appropriate resolved in Congress . . . are not subject to reexamination in the federal under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, But it is Congress or the states within their appropriate agencies which eventually must make that judgement."
But the intent of Congress was hard to find in a case in which Richard Nixon tried to block swift access by makers of phonograph records and cassettes to White House tape recordings played at the Watergate cover-up trial of former top aides to Nixon.
During lengthy litigation, neither side invoked a 1974 law which, a Senate report said, was intended "to provide as much public access . . . as is physically possible as quickly as possible" to tapes and papers from the Nixon tenure.
Although the law seemed irrelevant to the expert attoneys in the case, the court relied on it a surprise 7-to-2 ruling for Nixon, Justice Powell, in the opinion for the court, reffered to the law as "an additional, unique element . . ." Some court watchers translated this to mean that with the exception of Justice Marshall and Stevens, the court could not bring itself to inflict probably enduring ridicule and scorn on a former president.
Nonetheless, the court as well as to Congress. The National Labor Relations Board, for example, won five of its cases. Sometimes the court actually seemed to be straining to be deferential. A case in point was the unanimous decision against Zenith Radio Corp.
The court ruled that a Japanese "commodity tax" levied on television sets sold at home but lifted on sets sold abroad did not trigger imposition by the United States of coutervailing duties under the Tariff Act of 1930.
Zenith had petitioned the duties in April 1970. After Treasury failed to act for four years and nine months, Congress passed a law requiring it to act within 12 months. Treasury waited the full 12 months before finally ruling against Zenith. Despite this unbelievably prolonged dillydallying, Justice Marshall opinion for the court contained not a harsh word for Treasury.
But the court evoked impassioned dissents with rulings showing unusual if not startling deference to judges, law enforces and in one case, corporations.
In another ruling that chilled the press, the court held 5 to 3 that police can get warrants to make unannounced searchers of places - owned or occupied by persons believed to be innocent of criminal activities.
Stevens warned in a dissent of "extremely serious" consequences for countless law abiding citizens -"doctors, lawyers, merchants, customers, bystanders" - who may have papers relating to a criminal investigation. The majority, led by White misread the Fourth Amendment protection of "papers" from unreasonable searches, Stevens said.
But Stevens sided with White in an opinion upholding absolute immunity for an Iidiana judge who, without a judicial proceeding of any sort, approved a mother's petition for sterilization of her unaware daughter, then 15. Notably, White would later speak for the court in denying the same absolute immunity to federal executive officials.
Stewart accused the majority of nothing less than relying on a "factually untrue" definition of a "judicial act" and of cloaking "lawless conduct" in total immunity.
By 5-to-4 majorities, the court let judges order telephone companies to help federal agents install devices called pen registers that record the numbers of all outgoing calls made from target phones, and redefined "acquittal" to let prosecutors try some defendants twice.
But in an important decision running the other way, the court, with an opinion by Blackmun, decided 7 to 2 to allow a defendant to get a hearing to suppress evidence obtained with a search warrant based on false allegations.
The court ducked some tough ones, including a separation-of-powers case involving the legislative veto, which presidents have been denouncing for more than 40 years, and the application of absolute legislative immunity for speech and debate to improper acts.
The court also refused either to affirm or nullify a decision by the 8th U.S. Circuit Court of Appeals that a state university could not refuse to provide a meeting place to a "Gay Lib" group that wanted only to have a forum for "dialogue" between homosexuals and heterosexuals.
Joined by Blackmun, Rehnquist chided the court for making "a sort of judicial storm center out of his discreation to decline to hear such cases without saying why.