"The Supreme Court follows the election returns" is an old jibe currently used to disparage the supposed move to the right led by Chief Justice Warren Burger. Stand the maxim on its head, however, and there emerges a much truer picture of the Burger court and its relations with the country. The Burger court, far from being distinguished by a conservative bent, is chiefly noted for narrow decisions on particular grounds that point in no clear direction.
Numbers reveal something of what has been happening. In 1969-70, the final term of Earl Warren's tenure as chief justice, decisions by a vote of 5-4, or a plurality of view with no majority, totaled nine. During the term that ended last week, the number of such decisions was 34.
The tendency to divide narrowly transcends completely the right-left pattern on virtually every issue. Consider, first, abortion. The court broke new liberal ground in a 1973 decision (Roe v. Wade) that proclaimed the constitutional right to an abortion. But that right was sharply circumscribed in a 1977 decision (Maher v. Roe) that allowed states to withhold welfare subsidies to women who had abortions for reasons other than health. Last week the court narrowed the right still further by holding 5-4 (In Harris v. McCrae) the constitutionality of a congressional statute that denied Medicaid payments for abortions that were not medically necessary. t
Civil rights tell the same story. In two highly publicized cases (University of California v. Bakke in 1978 and Fullilov v. Klutznick last week) the court upheld the principle of reverse discrimination to favor blacks and other minorities. Both decisions were by pluralities, with no final majority yet for affirmative action.
Desegregation of schools, including extensive busing, has also been repeatedly endorsed by the Burger court. But the court has deliberately asserted, in the words of Justice Lewis Powell, that "no rigid guidelines as to student transportation can be given." So the issue gets decided case by case, and the biggest case (Chicago) is yet to come.
Capital punishment was sharply curtailed in a 1972 decision (Furman v. Georgia) dear to liberals. Since then, the court has theoretically kept open the possibility of applying the death penalty without practically giving sanction. The relevant case from the most recent term (Godfrey v. Georgia) found a not atypical plural opinion.
The judgment of the court was delivered by Justice Potter Stewart with support from Justices John Stevens, Harry Blackmum and Powell. A concurring opinion was written by Justice Thurgood Marshall for himself and Justice William Brennan. There were two dissents -- one by the chief justice and a second by Justice Byron White for himself and Justice William Rehnquist.
In cases involving the public's right to know, the Burger court has been all over the lot. It leaned liberal in refusing to ban publication of the Pentagon Papers. It leaned conservative (in Gannett v. DePasquale) in denying press access to pre-trial hearings last year. Last week it went the other way in asserting the principle of open trials in the Richmond Newspapers case. But there were six different opinions, none commanding a majority.
Similar patterns of equivocation can be found, according to Bruce Fein who has studied the Burger court for the American Enterprise Institute, in such areas as criminal justice, state aid to secular schools, patent law and the regulation of business and labor. Indeed, the justices themselves have discreetly acknowledged the fragmented character of the present court. Justice Powell, in a footnote to the published text of a speech to the Southwestern Legal Foundation in May of this year, observed that "the court may fairly be criticized for the increasing number of dissenting and concurring opinions." The chief justice has asserted that while the court should ideally be in the Yes-No business, it frequently finds itself in the Maybe business.
Many reasons -- especially the complexity of recent cases and the sweeping nature of the Warren court decisions that the Burger court has to translate into real life -- explain the recent pattern. But the important influence, by far, is atmospheric.
The Supreme Court, like all other institutions in this powerfully populist democracy, survives by the sufferance of the majority. It is never remote from the tides of opinion. On the most salient issues, from abortion through civil rights to the death penalty, national opinion is deeply fragmented, uncertain and volatile.
No doubt it would be more convenient for those who have to do both public and private business if the court gave greater heed to what Justice Stevens recently called the "social interest" in "constant and predictable application of legal rules." But in a time of troubles when national opinion itself is unformed, it is safer, and to my mind better, to take tiny steps at the margin, to move case by case in a hesitant way that leaves room for change later on.