Under Siege Once More

The more active it becomes, the more often the Supreme Court finds itself under siege. After the 1954 Brown v. Board of Education desegregation decision, Southern Governors and legislators were moved to such desperate tactics as the doctrine of interposition, which held that the states had the right to nullify or block decisions when they thought that the Supreme Court had exceeded its powers under the Constitution. In 1958, the Senate narrowly rejected a bill to end the court's right to review loyalty or security cases. After the 1962 school-prayer decision, Senators led by Illinois' Everett Dirksen attempted to reverse the court with a constitutional amendment. After that, the one-man, one-vote rulings prompted Dirksen and his friends to try calling a constitutional convention to overrule the decisions. Then came the court's steady extension of constitutional rights to criminal defendants--and the inevitable counterattack from Congress.

That fight has just moved to the Senate floor, where it echoes through the debate on the Administration's mammoth anticrime bill, currently being considered piece by piece.*Due for a vote this week is Title II, which was added to the bill in committee by Senators John McClellan of Arkansas and Sam Ervin of North Carolina. Now also supported by Presidential Candidate Richard Nixon, it takes dead aim at the Supreme Court in five separate proposals that would:

> Repeal in federal courts the Supreme Court's 1966 Miranda decision, which required that suspects under arrest be told of their rights to silence and counsel. The new provision would make confessions again admissible in federal court if given "voluntarily," even without a Miranda warning.

> Repeal the Supreme Court's 1967 Wade decision giving suspects the right to have a lawyer present when they appear in a police lineup. Eyewitness

, testimony identifying a defendant as a participant in a crime would then be admissible in federal court no matter how the line-up was conducted.

> Repeal the Supreme Court ruling that a confession is not admissible in fed eral court if it was obtained during an unreasonable delay between arrest and arraignment.

> End the right of all federal courts to hear habeas corpus petitions filed by state prisoners.

>End the power of federal courts to review the use of voluntary confessions or eyewitness identifications in state courts.

Title II provoked immediate opposition from Attorney General Ramsey Clark, civil libertarians and most law professors. Though some legal scholars do not agree with the Miranda ruling, virtually all of them believe that legislative attempts to overrule constitutional decisions by statute establish a dangerous precedent. The fact that the court might later overrule the overruling, at least in part, simply adds to the potential confusion.

Great Case. Title IIs curbs have roots in the fear that the court is soft on criminals. Such criticism has not intimidated the court, however. Only weeks ago, it extended the Miranda warning rights to prison inmates when they are being questioned about involvement in other crimes. And during oral delivery of his opinion, Justice Hugo Black departed from the text to praise "the great case of Miranda v. Arizona." He added that the decision, "however much it may be criticized, was an earnest, honest attempt by this court to perform its duty under the Constitution to enforce the Fifth Amendment," which guarantees the right against selfincrimination.

Further rebuttal to Miranda critics is that the ruling has not demonstrably led to fewer convictions. Studies in New Haven, Pittsburgh and Washington, D.C. have found no impairment of law enforcement, since confessions are usually given only when good police work has already compiled enough evidence anyway. That was the case with Ernesto Miranda himself. After the court threw out his confession, he was promptly reconvicted without it.

*Last week the Senators agreed to limit the mail-order sale of hand guns--though not of rifles or shotguns.

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