Right Turn

Just as President Nixon hoped, the Burger court is swinging to the "center." The biggest losers are those who often seemed to be the Warren era's biggest winners: criminal defendants.

Last week the Burger court sharpened that trend with a 5-to-4 decision limiting Miranda v. Arizona, the famous 1966 ruling that requires police to warn all suspects in custody of their rights to silence and counsel. Speaking for the majority, Chief Justice Burger offered prosecutors a possible way out when police fail to give the Miranda warnings. Until last week, such a failure was thought to make a suspect's in-custody statements wholly inadmissible at his trial.

Now if an unwarned suspect later takes the stand, his pretrial statements to the police can be used to impeach his courtroom testimony. In sharp dissent, Justice William J. Brennan argued that the effect of the decision is that police may now "freely interrogate an accused incommunicado" despite Miranda; the accused may then see his own careless words convict him "if he has the temerity to testify in his own defense." Brennan's argument failed to move Burger, who dismissed "the speculative possibility that impermissible police conduct will be encouraged."

In another significant retreat from the Warren era, the Burger court last week also limited the widespread use of federal courts to halt state criminal prosecutions that are allegedly unconstitutional. Justice Hugo Black spoke for the majority in barring federal interference in state criminal trials except in cases of a prosecutor's bad faith or harassment, or when a state law is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph." The ruling overturned a federal court victory for black militants in California. It was accompanied by related decisions that cleared the way for state obscenity prosecutions in three other states and the prosecution of black protesters in New York and Illinois.

Naked Decision. On another front, the court moved warily as it dealt with a complaint of many of today's young law graduates: they oppose state rules that require them to submit to inquiries about their loyalty to the Government before they can be licensed to practice. In cases from Arizona and Ohio, the court ruled 5 to 4 that bar applicants need not list all of the organizations they have joined, or swear that they have never belonged to groups that advocate violent overthrow of the Government. But in a New York case, the court (also 5 to 4) made a subtle distinction: New York, and presumably other states, may require bar applicants to reveal whether they ever belonged to a subversive group with the actual intent to advance its aims of overthrowing the Government.

Also at issue was the old puzzle of what constitutes free "speech" that is protected by the First Amendment. To protest Playboy magazine's alleged sexual exploitation of women, eight students at Iowa's Grinnell College stripped naked at a public meeting. Convicted of public indecency, they argued that their action was a form of speech and thus deserved immunity from prosecution. The Iowa Supreme Court ruled against them. By refusing to hear their appeal, the Burger court let that decision stand.

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