The appurtenances of Justice were in place in the Supreme Court: the gavel, the emergence of the black-robed figures, the marshal's appeal to God to "save the United States and this Honorable Court," the outward cordiality.
But no appurtenances could conceal the palpable reality: The court, meeting last Monday to hand down the final decisions of its 1979 term, was snappishly divided-more so, say some observers, than on any previous adjournment day in the decade since Warren E. Burger became Chief Justice of the United States.
Within moments, the rifts and tensions again began to surface.Some were revealed when the justices struck down, by a thrmping 8-to 1 majority, a Massachusetts law requiring parental or judicial consent for an unmarried minor seeking an abortion-but with no opinion for the court.
The justices split into one bloc of four that drafted a hypothetically constitutional abortion law, and a second bloc of four that refused to sign what its members saw as an improper advisory opinion.
Justice William H. Rehnquist provided a peek behind the scenes. In a separate opinion, he disclosed that there would have been only three justices in the first bloc if he hadn't joined it-reluctantly-to enable Justice Lewis F. Powell Jr. to announce the judgment of the court and thus to avoid leaving "literally thousands of judges. . . with nothing more than a truly fragmented holding."
The abortion ruling was a symptom of a worsenting fragmentation behind the red velvet drapes. So was Burger's suggestion, only four days earlier, that five of his brethren-the majority in the troublesome Brian Weber racial quota case-were "intellectually dishonest."
Some observers saw in such episodes signs of an emerging parallel in the judicial branch to the growing inability of the executive and legislative branches to put together a consensus
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for public policy-on, for instance, energy and inflation-and then to stand by it.
"The court, too, seems to be increasingly unwilling to search intently for unanimity or, at least, for commanding majorities," said Bruce E. Fein, who writes an annual book, "Significant Decisions of the Supreme Court," for the American Enterprise Institute.
"The result is a growing inability to provide principled, long-term guidelines-a jurisprudence designed to guide judges and the citizenry beyond the confining factual circumstances of particular cases," Fein said.
To be sure, some among a dozen experts said in interviews that Burger's "intellectually dishonest" phrase was, if unusual for a chief justice, whithin the time-honored tradition of robust dissent.
"It's a matter more of taste in opinion-writing than it is a teltale sign of personal feeling," said the Unlversity of Virginia's A.E. Dick Howard. Simi-larly, Harvard's Laurence H. Tribe said, "I'm not troubled."
Fein's case in point was Weber. There, the court upheld affirmative action plans in the private sector - in which employers in the aluminum, canning and steel industries, in contracts with the United Steelworkers, agreed to train unskilled employes for craft jobs, with a quota for minorities.
These plans involved employers without proved histories of discrimination. The plans are temporary. They seek to overcome what the court called "conspicuous" or "manifest" discrimination in traditionally segregated job categories. They neither exclude whites in toto nor result in dismissal of whites.
"We need not today define in detall the line of demarcation between permissible and impermissible affirmative action plans," Justice William J. Brennan Jr. wrote for a 5-to-2 majority.
But around the country, Fein pointed out, "judges are left at sea in evaluating affirmative action plans that lack one or more of the attributes listed in the opinion."
The nine-month term just past, like others before it, was truly important for millions of Americans. Weber has direct, personal meaning for whites, blacks, Hispanics, women.Other decisions have everday meaning for parents, juveniles and prisoners, and for friends or foes of abortion, busing, access to federal courts and public employment preferences for veterans.
In another. rarified context - that of what Prof. Howard called "great constitutional breakthroughs or innovations" - the session was relatively uneventful. Weber, for instance, however controversial, wasn't decided under the Constitution, but under a law, the Civil Rights Act of 1964.
The court upbeld claims of sex discrimination in six of the eight cases in which such claims were made. In one notable decision, Orr vs. Orr , the court held, 7 to 2, that the guarantee of equal protection of the laws in the 14th Amerdment was violated by a state divorce statute rerquiring alimony to be paid by men but not by women.
"They're putting the Equal Rights Amendment into the Constitution before it's ratified," remarked Yale's Robert H. Bork, a former solicitor general of the United States.
George Kaufmann, a Washington lawyer specializing in the high court, found the session "not a very significant one in long-range terms," but he did cite "one major doctrinal decision."
That decision resulted from a sex discrimination suit brought against former representative Otto E. Passman (D-La.) by an aide he'd fired solely because she was a woman.
In a 5-to-4 decision, the court held that a right to sue - and to seek damages - can be implied directly under the Fifth Amendment when its guarantee of equal protection is violated.
Tribe disputed Kaufmann's assessment, contending that the true breakthrough had been made years earlier when the court held that the same right can be implied under the Fourthe Amendment for citizens subjected by federal agents to unreasonable searches and seizures.
For Tribe, this was "the quiescent term."
But the court's performance was deeply disturbing to Trible, among others, in another context: the trends it extended or modified in particular cases.
Two rulings were particularly troubling to one or more of the diverse experts consulted by the Washington Post.
One was the Weber ruling, because the result runs counter to the literal language of Title VII of the Civil Rights Act of 1964 and - said Justice Rehnquist and Chief Justice Burger in separate, vehement dissenting opinions - to legislative history and intent.
Rehnquist's exhaustive analysis of congressional intent was "unanswerable," said the University of Chicago's Philip B. Kurland, who pointed out that he had filed a pro-Brian Weber-friend-of-the-court brief. "The majority opinion was without substantial basis in any way, shape or form," he charged.
Of the other specialists who denounced the opinion none reacted so strongly.Some said that the case, wnile a close call, was decided correctly. They cited two reasons stressed by Justice Brennan: the whole point of the law was to help minorities, and Congress, while certainly bent on preventing government imposition of affumative action, also was determined to leave the private sector as free as possible to devise plans to overcome discrimination.
By contract, the experts were virtually unanimous, and harshly so, in attacking the decision in the second case, Gannett co. vs. DePasquale . There, a confusing 5-to-4 majority held that the guarantee of a public trial in the Sixth Amendment is for the benefit of the accused alone.
"The Constitution nowhere mentions any right of access to a criminal trial on the part of the public," Justice Potter Stewart wrote.
The decision upheld an upstate New York judge who, to prevent possibly prejudicial publicity, closed a pretrial hearing in which two men sought to suppress their allegedly involuntary confessions to a second-degree murder and the evidence seized as a result of the confessions.
The closing, requested by the accused and consented to by the prosecutor, excluded the public and a news paper reporter.
Under these circumstances, Stewart wrote, the Constitution gives neither the public nor the press a right to be in the courtroom. "Special risks of unfairness" to a defendant arise from scppression hearings, he said.
The court reserved for another day a specific ruling on whether the First Amendment gives the public and the press the right to attend criminal trials. But Stewart, assuming only for the sake of argument that the amendment "may guarantee such access in some situations," wrote that in Gannett , the judge gave "his putative right all appropriate deference . . . "
A criticism of the decision by Stanford University's Gerald Gunther was especially notable because he offered it after venting to a reporter his dismay over "doomsday" and "self-defeating" reactions by press groups to earlier rulings involving the First Amendment. "Hysterical," he said "Bizarre, grotesque."
But he said Gunnett "disappointed" him. "I am more troubled by this case than about most of the things that the press has gotten excited about," he said.
He urged the press to pay special attention to the concurring opinion, in which Justice Powell wrote, "Because of the importance of the public's having accurate information concerning the operation of its criminal justice system, I would hold explicitly that [the] reporter had an interest protected by the [First Amendment] in being present at the pretrial suppression hearing."
As in past concurrences in First Amendment cases. Powell urged judges to balance "competing constitutional rights." But, on the specifies of Gannett , he agreed that the report er's interest, and the public's, were outweighed.
Powell's assertion of a First Amendment interest was endorsed by several constitutional experts, including Bruce Fein and George Kaufmann.
But it drew no support either from other justices in the majority or from the powerful dissenting opinion by Justice Harry A. Blackmun. He found no need to involve the First Amendment because, he wrote, the Sixth Amendment guarantee of a public trial protects "the important interests of the public and the press (as a part of that public) in open judicial proceedings. . ."
Moreover, a scornful Justice Rehnquit wrote that the majority of which he and Powell were members "emphatically has rejected [Powell's] proposition. . . that the First Amendment is some sort of consitutional 'sunshine law' that requires notice, an opportunity to be heard and substantial reasons before a governmental proceeding may be closed to the public and press."
Harvard's Tribe found the decision "outrageous" and could "think of nothing to say in [its] defense."
Bruce Ennis, legal director of the American Civil Liberties Union, called it "one of the worst decisions of the Burger court." Prosecutors will have "free rein to offer defenants deals in return for defense support of secrecy," he said.
"Had this decision taken place before or during Watergate," Ennis said, "the press might not have been able to report on Judge [John J.] Sirica's questioning of the Watergate burglars, which changed the course of history."
At Duke University, Prof. William W. Van Alstyne, who believed Stewart correct as to the Sixth Amendment's protection in the case, said he would share the "general alarm" if Rehnquist's First Amendment views had prevailed. But, he stressed, the court had reserved the right to rule later on the First Amendment issue in the case.
Some of the experts saw in several decisions, including Gannett , the extension of a long-term trend among the justices to be "activist" and "result-oriented," with anomalies resulting.
"They do justice as they see it, with out regard to the intent of the framers, the Constitution and their own precedents," Philip Kurland protested in Chicago.
Said Yale's Robert Bork: "This is a court that doesn't have a strong philosophic theme."
Only a desire to see personal values prevail or a detchment from the real world would seem to account for assertions underpinning some majority opinions.
In a ruling upholding use, without a warrant, of devices that record the numbers dialed on a telephone, for example, Justice Blackmun said that the numbers don't reveal the content of conversation.
Is that the real world? Justice Stewart thought not, saying a list of dialed numbers could "reveal the most intimate details of a persons's life." Think of a man who phones a massage parlor, one observer said.
In Gannett , Stewart - going far beyond the trial judge - portrayed news articles about the case as creating a substantial probability of prejudicial publicity that could deny the accused a fair trial by neutral jurors.
This time, it was Blackmun who thought Stewart out of the real world. Detailing the overage at length, he said the articles were "placid, routine, and innocuous. . . nothing that a fair-minded person could describe as sensational journalism." Further more, he pointed out, the newspapers had carried no stories at all on the case for three months before the suppression hearing.
Stewart accepted the proposition that the public interest is prodected by the adversaries in litigation and the judge. He spoke of prosecutors beinbg more concerned with doing justice than winning. Again, Blackmun didn't see that as the real world - one in which prosecutors and judges often are elected and are of the same political party as defendants.
In Richmond, Prof. Howard was struck by some decisions that deviated from a trend in the court to make it more difficult for state prisoners and others to get relief in the federal courts.
He also noted decisions that enhanced Fourth Amendment privacy protections and that preserved the power of judges to order busing to remedy school segregation if segregation has been ruled to be a result of laws or official action.
Several times, two of President Nixon's appointees, Blackmun and Powell, parted company with the other justices. In 55 cases that divided the court and that arbitrarily were rated by a reporter as important, for example, Blcakmun and Powell split from Burger at least 15 times each.
The court returns the first Monday in October.