The Nixon Court: Progress Report

As the death-penalty decision made clear, the Supreme Court has rarely been so neatly balanced. Although the court tipped to the liberal side in that decision, a bare majority of five justices also ruled last week that:

> Members of Congress or their aides can be questioned at trials or by grand juries on any matters other than those "that are part and parcel of the legislative process." Alaska Senator Mike Gravel, backed by the Senate, had argued that the constitutional immunity of legislators extended even to the actions of an aide in arranging for publication of Pentagon papers that Gravel had earlier made a matter of legislative record. He lost.

> A lawsuit challenging Army surveillance of civilians should be dismissed, since those who brought the suit could not show any harm had been done to them as a result of the Army's investigations. If and when they discover they have been harmed, then a suit can be brought.

> A newsman has the same duty as any other citizen to answer questions put to him by a grand jury, unless state law provides otherwise. That decision rejected New York Times Reporter Earl Caldwell's argument that he had a First Amendment right to refuse to testify before a grand jury investigating Black Panthers.

On the last day before they gratefully hung up their robes for the summer, the Justices delivered themselves of a mind-numbing 689 pages of opinions. It had, in fact, been one of the longest sessions in history (270 days), with the greatest workload in years (full opinions were written in 131 cases). It left the Justices uncommonly testy with one another (see below) and so intellectually overtaxed that Chief Justice Warren Burger has said privately that merely getting through the year was a triumph of sorts.

Partly because of their deep differences, the Justices have tended all year to issue separate opinions, a practice that is easier than the extensive discussion and rewriting that produces a single, clear statement from the majority and another from the dissenters. The fragmentation makes it risky to attempt a simple chart of the Burger Court's political or intellectual course, but some of its trends are becoming clear.

The new court is not inclined to be suspicious of people in power. Where the Warren Court anticipated abuses by police and other officials, the Burger Court seems to trust authority. It ruled that a witness compelled to testify before a grand jury need be given immunity only from prosecution based on what he says or evidence developed from it; the majority asserted that prosecutors would not be able to misuse such leads to find other evidence to convict the witness. The court also upheld a policeman's right to stop and frisk a suspect even if the officer's suspicions are based on the word of an unnamed tipster. When the court did find that officials had overreached their authority, however, it proved ready to slap them down, thus the Justices ruled unanimously that it is unconstitutional to eavesdrop on domestic political "suspects" without a judicial warrant.

Though reluctant to overturn previous liberal decisions, the Burger Court finds differences in new cases to justify a shift away from the earlier principles. The Warren Court had declared that a shopping center was a public place where pickets had normal rights of free speech; the new majority pointed out that the earlier decision involved a labor dispute with a store in the shopping center and concluded that in a case of antiwar protest, an owner's property rights override the rights of demonstrators. The Warren Court declared that a suspect is entitled to a lawyer at a lineup; the new majority says a lawyer is required only after the suspect has been indicted, which often occurs after the lineup.

Despite Nixon's effort to narrow the policymaking role of the court, the Burger Court had a broader impact this year than at any time since the Warren era. In addition to the capital punishment decision, the court last week also ruled that a parolee can no longer be sent back to prison at the discretion of his parole officer, but must be given a fair hearing. Earlier, it declared most vagrancy statutes unconstitutionally vague and required that a lawyer be made available to any indigent facing jail--no matter how small his offense. It also found that the tradition of unanimous verdicts was not constitutionally necessary in state criminal trials; a 9-3 verdict will now be allowed in states that pass such a rule. Finally, the court threw out residency requirements of three months or more in congressional, state and local elections.

Although these tendencies may be visible, the first year with four Nixon nominees ended without the court's having embarked on any clear, single-tracked course. Liberal? Conservative? It has undeniably shifted toward the latter, but the votes are so close, the opinions so numerous that the court as a whole remains something of a puzzle. It has, of course, no obligation to journalists or historians to be quantifiable, but as the late John Harlan observed, the ability to "definitely settle differences in an orderly, predictable manner" is a legal system's vital contribution to any society.

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