Pair of Dockets

The nine Supreme Court Justices were back on the job last week "in a good mental set and ready to go," as one of them put it after looking over his colleagues. They had to be, for the unusually heavy pressures and duties facing the court this term were felt almost immediately. In their first important determination of the year, the Justices declined for the moment to consider the President's right to impound congressionally authorized funds.

At least 37 suits are currently attacking impoundment in courts around the country. Both Georgia and the Justice Department had urged that their dispute should be heard directly by the Supreme Court so that the whole issue could be settled quickly. The court did not explain last week why it chose not to exercise its constitutional power of original jurisdiction, and the case will now apparently go to a federal district court for trial.

But even without impoundment, there is looming over the court a phantom docket of cases that have not yet been formally presented to the Justices but almost certainly will be. And all involve challenges to presidential powers. Unlike the neutral result of the action on the Georgia impoundment suit, these other cases will come up with lower-court rulings that will stand if the Supreme Court declines to review.

The most critical test is the confrontation between President Nixon and Special Watergate Prosecutor Archibald Cox over nine White House tape recordings, which now goes to the high court (see THE NATION). The Senate Watergate committee's fight for some of the same tapes is still before the trial judge, but it may also have to be dealt with by the court this term. Meanwhile, a Ralph Nader group is seeking access to presidential papers that, it believes, will show an improper connection between an increase in federal milk-price supports and Nixon campaign contributions from milk producers. The Supreme Court will thus have an opportunity to consider Executive privilege against the competing interests of, respectively, a criminal prosecutor, the Congress and private citizens.

Congressional v. presidential authority is also involved in a suit over a Nixon pocket veto of a medical education bill during a five-day recess in 1970. Senator Edward Kennedy, a co-sponsor of the bill, went to court contending that the pocket veto power was meant for use only when Congress was in adjournment. He recently won in the trial court, and the appeals are now under way. Further in the future, the court may also have to consider whether the President's national security power legally justified the office burglary of Daniel Ellsberg's psychiatrist, as former Presidential Adviser John Ehrlichman is now arguing.

By contrast, the issues on the court's actual docket are not, concedes one Justice, "particularly exciting." Nonetheless, important cases are pending in which the Justices are asked to:

P:Sharply undercut the exclusionary rule barring the use of illegally seized evidence by permitting it to be introduced in court if the improper police conduct was not "outrageous."

P:Decide whether a judge can order busing across district lines to desegregate public schools.

P: Declare sex discrimination as constitutionally suspect as race discrimination, thereby rendering the equal rights amendment largely superfluous.

P:Limit class actions by tightening the standards under which such suits may be maintained.

P: Uphold a taxpayer's right to discover the heretofore secret CIA budgets.

The court has not scheduled any case that could markedly clarify last June's pornography ruling; however, a decision by the Georgia Supreme Court --upholding a local finding that the film Carnal Knowledge was obscene--may yet reach the high bench.

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