A Fragmented, Pragmatic Court

Groping for the middle way and posting multiple opinions

The Supreme Court's October-to-July year that ended last week will be best known for the race-yes, quotas-no, something-for-everybody decision that the Justices reached in Bakke. But the 1977-78 term should also be remembered for what Bakke reflects about the court itself: the notion of a conservative "Nixon court'' has by now become largely myth.

For a time, the Nixon court sobriquet seemed apt. From 1969 to 1971, four Nixon appointees joined the court--Chief Justice Warren Burger and Justices Harry Blackmun, William Rehnquist and Lewis Powell--and many observers expected them to reverse the trend set by the liberal Warren Court in the 1950s and '60s. Judicially activist, the Warren Court had frequently extended constitutional guarantees of free speech, equal protection and due process to safeguard individual rights, which usually meant those of the poor, minorities and criminal defendants. With the arrival of the Nixon appointees, the court was less concerned with the rights of the poor, and its decisions became more conservative. Deferential to law-and-order needs, the court was usually thought of as reluctant to tackle large issues, preferring to leave more decision-making to legislatures and local courts.

But in the past few years, conservative votes by the four-man Nixon bloc have become less certain. For the first time this year, splits in the Nixon bloc happened more often than not. Only 36% of the time did the quartet vote together, as against 67% last year and 73% two years ago. That does not mean that the court's political pendulum has swung back to the left. Rather, court watchers say, the court has become distinctly nonideological. "They have no overarching doctrine," says Virginia Law Professor A.E. Dick Howard. "They're taking cases as they come in pragmatic fashion." In the early '70s some expected Chief Justice Burger to rally the court around him in conservative restraint, just the way his predecessor, Earl Warren, galvanized the court to judicial activism. But this year Blackmun abandoned Burger 30% of the tune, Powell 26%. Together with Justices John Paul Stevens, Potter Stewart and Byron White, they form an uncertain and searching middle core, sometimes balancing, sometimes just unpredictable.

Burger and his closest ally, Rehnquist, now stand increasingly isolated on the right, while Justices Thurgood Marshall and William Brennan hang onto the Warren tradition on the left. "Fragmented moderation," Michigan Law Professor Vincent Blasi calls it. "Even when they get clear majorities," says Stanford Law Professor Gerald Gunther, "many different opinions come down. The Justices are tending to be loners, more isolated, less inclined to give and take."

About the only clear signal from the disjointed court this year was aimed at the press. Claims by the press to special privilege under the First Amendment took a drubbing in several cases. The message struck with the bluntness of a sledgehammer in Zurcher vs. Stanford Daily, which allowed police to raid newsrooms without warning to search for evidence of crimes committed by others. Although the court ruled that police must first obtain warrants, many commentators feared that local magistrates would not hesitate to let police fish through reporters' desks and notebooks, scaring off sources from confiding in the press.

Far from enjoying any special free-speech privilege, broadcasting comes under special restrictions, and the court emphatically affirmed this on its final day last week. In the so-called "seven-dirty-words case," the four Nixon appointees voted together to support an opinion by Stevens. In the 5-to-4 ruling, Stevens said that the Federal Communications Commission could admonish a radio station for airing "patently offensive" language, even if that language would be protected in another medium as less than "legally" obscene. The "uniquely pervasive presence" of broadcasting justifies such regulation, said Stevens, who tried to narrow the ruling to the facts of the case--an explicit comedy routine that could be heard by a child in the afternoon over New York's radio station WBAI-FM. Angrily dissenting, Brennan said that Stevens' rationale "could justify" banning Chaucer from the radio, as well as portions of the Watergate tapes and the Bible.

In another case, a somewhat petulant opinion by Chief Justice Burger declared that the press had no more free-speech rights than anyone else. The outburst caused many to wonder if Burger did not have a personal peeve against the press. "There is a certain undertone of resentment against the press, a sort of 'Who do they think they are?' feeling among a few Justices," remarked Michigan's Blasi. But he warned against overplaying the court as antipress. Like other First Amendment experts, Blasi points to a little-noticed unanimous decision striking down criminal sanctions against a newspaper for disclosing confidential state proceedings against a judge in Virginia. With sweeping language--written by Press Nemesis Burger--the court effectively allows the press to print virtually any government information it can obtain.

Still, the process of getting that information enjoys considerably less protection. In two cases, the court refused to hear challenges to court-imposed limits on what participants in a criminal trial could say to newsmen. In three others, it decided not to review orders to newsmen to reveal their sources in ordinary civil cases. Two weeks ago, the court denied special prison access to San Francisco TV station KQED, specifically telling the press that it had no more right of access than the general public.

The decision stirred a new round of hand wringing by press defenders, but the outcome may not be as grim as it looks. Only three Justices (Burger, Rehnquist and White) refused to give the press any kind of special access. Stewart argued that the press could bring along its tools of the trade, including cameras, on public tours. "In theory, the press may not have any more access than the public in Stewart's view," said Stanford's Gunther. "But practically, it does." Three Justices (Stevens, Brennan and Powell) argued that both press and public should have greater access. The decision reflects the sensitivity of some Justices to the practical needs of the press. While carefully avoiding any doctrine of special privilege, Justices like Powell, Brennan and Marshall are trying to find a way to protect practical needs of the press in specific circumstances. But other Justices tend to rely on their own intuitive judgments about whether a given ruling will "chill" press freedom. "In the Stanford Daily case," notes Columbia Law Professor Benno Schmidt, "Justice White [who wrote the majority opinion] just doesn't believe that sources will dry up." Notes Gunther: "There is a great deal of misunderstanding and suspicion between press and court. Both sides are at fault."

The court's tendency to grope for a middle way was clearly revealed in its criminal decisions this year. In contrast to the earlier years of the Burger Court, the Justices last term ruled more often in favor of defendants than of prosecutors. Last week the court ruled that juries must be allowed to weigh almost limitless mitigating circumstances, which may force many states to write more lenient death-penalty statutes. They also protected the accused's right to counsel and jury trial in two decisions, and in another refused to permit a "murder scene" exception to requiring search warrants.

A principal device used by the Burger Court in the past to cut down on the judicial activism of the Warren Court was simply to "close the door"--to keep civil rights or constitutional claims out of federal court. But this year the Justices surprised many court watchers by opening a number of doors. Reversing a 1961 decision written by liberal Justice William O. Douglas, the court ruled that municipalities do not enjoy immunity from civil rights suits. Similarly, the court held that high federal officials could be held personally liable for violating the Constitution, except in those "exceptional situations" where their protection is "essential for the conduct of public business."

As for the most pressing issue to face the court this term--affirmative action--the Justices followed up their divided Bakke ruling by refusing to hear a union challenge to a settlement between the Government and AT&T setting substantial goals for promoting women and minorities. The court also sent two other affirmative-action plans--struck down by lower courts--back for rehearing, one on procedural grounds, one "in light of" Bakke.

That go-slow posture should come as no surprise. Having nibbled away at some of the broad doctrines of the Warren era, the Burger Court seems to have entered a period of cautious weighing and adjusting. Uncertain and divided on a whole range of difficult questions, the court will have plenty of opportunity for fine-line drawing in future terms.

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