Individuals have won more than half of the civil liberties cases reaching the Supreme Court this year, a dramatic reversal of last year, when the government won eight of every 10 such cases.
"We are holding our own," said Burt Neuborne, legal director for the American Civil Liberties Union, as the court reached the halfway mark for decisions this term. The ACLU already has won more cases this year than it did all of last year.
Last term, the court ruled on 69 civil liberties cases, which are those pitting individual constitutional rights against government authority. It decided 13 in favor of the individual and 56 in favor of the government, according to an analysis by University of Chicago law professor Geoffrey R. Stone.
But this year, individuals have won 15 of 28 decisions in cases raising civil liberties issues.
The reasons are unclear, although some observers speculate that the court may be reacting to adverse publicity over last year's record.
But court observers caution that it is too early to reach firm conclusions. For one thing, the easy, unanimous cases tend to be decided early in the term and the hard ones at the end.
The major cases this year focus on church-state relations, and none of the difficult or far-reaching cases in that area have been decided.
The government's 81 percent winning rate last term led Stone to conclude at that time that the justices "may have signaled a . . . historic shift in the court's constitutional role," and that the justices were making a clear break with the Warren court view that the court is the protector of the rights of minorities.
"The era of moderation" that marked the first 14 years of the Burger court was over, Stone concluded. The government won a higher percentage of cases that term than in any term but one in the last 50 years.
"This is a 'majoritarian' court," Stone said in an article published by the Cato Institute. "It seeks to restore to the 'majority' its right to assert its will, even in those areas in which minority interests are most seriously threatened. It is insensitive, or at least unempathetic, to those in need of its protection."
Neuborne agreed with Stone last year, calling the court a "cheerleader" for the government. But "it may be a blip caused by an artificial collection of hard cases. What killed me last term was losing whenever there was a close question. Now it seems the close questions are up for grabs."
The ACLU victories mostly have come in minor cases decided by a unanimous or nearly unanimous court. Three of the 28 civil liberties decisions this term were decided on 5-to-4 votes. The ACLU position prevailed in two of the three cases.
Harvard Law Prof. Paul Bator, until this year the U.S. deputy solicitor general, concluded that "the media" and some court observers overstated the court's actions last year. Many of the pro-government decisions can be attributed to the particular lineup of cases before the court and "happenstance," he said.
The record, however, could be the result of another, less tangible, factor, Bator said. The outcry last year criticizing the court for a rightward lunge might have had some effect, he said.
"The very fact of the media saying there is a trend sets up a magnetic pull in the opposite direction," Bator said. The uproar may have exerted a "very subtle" pressure on the court, creating a "psychological situation" where the justices did not want to appear to be rushing in one direction or another.
Most observers agree that the first half-year statistics hardly mean the Burger court is becoming liberal or turning from a conservative trend that became pronounced after the more conservative Justice Sandra Day O'Connor replaced Potter Stewart in 1981.
The "trend is still there," Stone said in an interview. "You can't get much lower than the 1983 term."
Alan Morrison, director of Public Citizen Litigation Group and a longtime court watcher, agreed. "There are hills and valleys," Morrison said in an interview last week. "The court has not been uniformly turning against the rights of individuals." The increased civil liberties losses last year may have been in part a "question of fortuity," or what cases arrive at the court in a given year.
So far this year, the ACLU or individual liberties victories included:
* Ake v. Oklahoma, where by 7 to 2 the court said indigent criminal defendants pleading insanity have a constitutional right to a psychiatrist to help make their case.
* Tennessee v. Garner, in which the court voted 6 to 3 to strike down state laws giving police the power to shoot to kill unarmed fleeing felons.
* Evitts v. Lucey, which established a constitutional right for indigent defendants to have effective assistance of a lawyer on appeal of a conviction.
* Cleveland Board of Education v. Loudermill, where the court ruled 8 to 1 that municipal and state employes have the right to notice and a hearing before they are fired.
* Hunter v. Underwood, where a unanimous court struck down a racially motivated Alabama law that disenfranchised persons convicted of crimes of "moral turpitude."
The U.S. victories include:
* Oregon v. Elstad, where the court, for the second time in two years, created a major loophole in the Miranda doctrine, ruling 6 to 3 that a confession elicited by police before warning suspects of their rights can be used at trial if police can convince a suspect to repeat it after giving the warnings.
* Wayte v. U.S., in which a 7-to-2 majority upheld the power of the government to prosecute only vocal resisters to draft registration.
* U.S. v. Sharpe, where the court, dividing 7 to 2, expanded the authority given police under Terry v. Ohio to detain suspects without a warrant