Cracks in the Bloc

As the Supreme Court puffed to the close of its term last week, legal observers noted that one of the longest regular sessions in history had also been one of the dullest. On the final day, for instance, the Justices ruled that defendants have the right to represent themselves without a lawyer if they wish and that border-patrol officers may not randomly stop cars away from border checkpoints to search for illegal aliens. If such cases did not add up to a banner year of decision making, court watchers were nonetheless fascinated by a potentially important change within the court: the continuing emergence of Harry Blackmun, 66, from the shadow of Chief Justice Warren Burger and the resultant cracks in the so-called Nixon bloc.

Friends from boyhood days back in St. Paul, Burger and Blackmun were quickly dubbed the court's Minnesota Twins. Blackmun's elevation to the court from the Eighth Circuit Court of Appeals was prompted by Burger's endorsement, and in Blackmun's first term the two differed on only 10% of the cases. They have never again been so much in accord, but a key split took place last July after the Chief wrote a draft of the court's unanimous opinion in U.S. v. Nixon, the explosive Executive privilege case. Most of the Justices found major sections of Burger's version sadly wanting, and Byron White and Potter Stewart prepared new language. TIME has learned that when the two confronted Burger with their suggested changes, the Chief Justice went to Blackmun for expected support--and did not get it. Whereupon Burger backed down, and the White-Stewart version was used, albeit under the Chief's name.

During the current term, Burger and Blackmun disagreed 20% of the time. More important, Blackmun's opinions reflected a somewhat surer sense of his role as a Supreme Court Justice, and even occasionally a more liberal bent. In two cases involving antitrust law and criminal procedure, his vote tipped the result 5 to 4 against the conservatives. In a First Amendment case, Burger may have been following Blackmun. The junior Minnesotan expanded the free-speech protection of advertisements and cited with approval a dissent from an opinion he himself had written only a year earlier. Once its slowest writer of opinions, Blackmun no longer half kills himself by personally double-checking every case citation in every opinion he writes or joins, and he is keeping pace with the other Justices.

More Middle. Blackmun's maturing and rising independence has jostled court alignments. The four Justices nominated by Richard Nixon--Burger (1969), Blackmun (1970), Lewis Powell (1971) and William Rehnquist (1971)--at first seemed to be a reliable bloc that promised to move the court away from Warren-era liberalism. But Powell has at times made the foursome a threesome; and with Blackmun more of a question mark, Burger and Rehnquist are now the most certain votes on the right. The liberals--William Douglas, William Brennan and Thurgood Marshall--remain in general agreement. And, to be sure, they are still often in the minority. The Wall Street Journal, for instance, has detected a majority trend toward favoring business, partly because of a desire to cut the glut of cases challenging all manner of commercial activity.

But with White, Stewart, Powell and Blackmun now all occasional members of the searching middle, the court is increasingly unpredictable. "It can make for some very sloppy law," says Stanford Constitutional Expert Gerald Gunther. "But in the long run I think it is a healthy sign, because it reflects the fact that some judges are engaged in a serious effort to rethink difficult problems. You need a breaking up of rigid lines before you can come up with a coherent set of rules for new questions."

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