Blackmun's Baptism

Like all Presidents, Richard Nixon yearns to nudge the Supreme Court toward his views of the nation's needs and priorities. Like many of his predecessors, Nixon is finding the court slow to respond. His first court appointee, Chief Justice Warren E. Burger, has not yet achieved intellectual or philosophical leadership within the court. Burger's chance might come with the exit of three aging Justices: Hugo L. Black, 84, John M. Harlan and William O. Douglas, both 71. But those venerables were so miffed by Nixon's efforts in the Haynsworth and Carswell episodes last year that now they plan to hang on as long as possible.

As the court starts its 180th year next week, however, many observers look to Nixon's second appointee, Justice Harry A. Blackmun. A private, studious, moderate jurist of 61, Blackmun could emerge as the court's pivotal figure. He may have the deciding vote in many important cases. With Republican appointees in the majority, suggests University of Chicago Law Professor Philip Kurland, a leading court watcher, the Burger Court may steer slightly away from the Warren Court's judicial activism--but hardly toward the conservatism that "Vice President Agnew and Attorney General Mitchell are seeking to create."

Icy Plunge. Blackmun spent the summer at home in Rochester, Minn., pondering cases to come before the court this term. Rarely have the Justices faced a bigger backlog of tough issues. Taking an icy plunge next week, they will hear at least eight hours of arguments in six desegregation cases, four of which involve the Charlotte-Mecklenburg school district in North Carolina. A major issue, is to what extent a federal court may require busing or other methods to eliminate all-black schools. Not only may the court's decision affect cities in the North as well as the South, it could also rebut President Nixon, who defends neighborhood schools and opposes busing as a means of desegregation.

Immediately after the school arguments, the court will listen to attorneys challenge the constitutionality of court procedures in capital-punishment cases. When raised last term, the questions were avoided by the Justices who were closely divided. Because Blackmun had written the lower-court decision, he could not vote. Now the issues arise in two new cases, and the junior Justice, who is known to have doubts about the imposition of the death penalty, may be in a position to curb it. The court's next issue is just as tricky: whether or not Congress had the authority to lower the voting age from 21 to 18 without a constitutional amendment.

Blackmun may also cast the tie-breaking vote in a series of cases that will illuminate the constitutional limits of protest and dissent. While the Warren Court largely avoided the chore of setting new First Amendment rules, suggests Yale's Alexander Bickel, events may now force the court to face such issues.

Among the court's most significant First Amendment cases is that of John Harris Jr. who was indicted by a Los Angeles grand jury under California's criminal-syndicalism act for distributing literature advocating terrorism. Passed in 1919 to prohibit the advocacy of crime, sabotage or violence, the act was challenged by Harris and declared unconstitutional by a U.S. district court because the broad language of the statute limits free speech. On appeal, the state argues, among other things, that the old law should be preserved in order to combat the new activities of Black Panthers, S.D.S. members and the American Nazi Party. Another First Amendment case involves a New York City art-gallery owner who was convicted for displaying artist Marc Morrel's sculpted concept of the American flag as a male sex organ. Although the court has not yet accepted the case, it has been asked to decide whether the proprietor and the artist have been denied their First Amendment rights to free expression.

As if those prospective issues were not awesome enough, the court will hear cases in at least three other areas that provoke impassioned advocacy.

For one, the court will get a full-scale introduction to Women's Lib when it hears the case of Mrs. Ida Phillips, who was denied an assembly-line job at a Martin Marietta Corp. plant in Florida because she was the mother of preschool children. Mrs. Phillips and the Justice Department, in a friend-of-the-court brief, contend that the company violated the 1964 Civil Rights Act prohibiting discrimination against women in employment. In addition, the court will be asked to decide whether the First Amendment wall separating church and state was breached by a recently passed Pennsylvania statute providing state aid for nonpublic school instruction.

The film I Am Curious (Yellow) will be reviewed again by the court. Last term the Justices adjourned without deciding whether or not the First Amendment forbids prosecution for showing an allegedly obscene film to an adult audience forewarned of the film's explicit sex scenes.

Viet Nam War Challenge. Finally, the court has been asked to rule on the legality of the Viet Nam War. Last spring the Massachusetts legislature passed a statute providing that no serviceman shall be required to serve in an overseas war that has not been declared by Congress; the state now seeks a declaration from the court that U.S. participation in the Viet Nam War is unconstitutional. If the court accepts the case, warned Justice Department attorneys last week, the Justices might conceivably be forced to set up their own military-affairs office, supervising troop withdrawals and dealing diplomatically with North Viet Nam. The court may well avoid the politically charged Massachusetts case. But clearly the Justices will be kept busy without it. Mr. Justice Blackmun, no doubt, would concur in that opinion.

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