Monday, Sep. 29, 1975

The High Court Stalls

When the U.S. Supreme Court wound up its annual session last spring, it held over eleven cases--an unusually large number--for reconsideration this fall. Next week the Justices will return to start the work of the fall term. Despite their custom of taking up old business first, they plan to hear oral arguments on only two of the eleven cases in October. Reason: votes on the other nine cases promise to be extremely close, and the health of Associate Justice William Douglas, who suffered a stroke last New Year's Eve, is still an open question. Says one expert on the court: "How would you feel if you lost a case 5 to 4 under those conditions?" Quite simply, Douglas' eight colleagues are effectively stripping him of any critical judicial responsibility until they can see for themselves if he is up to the task.

In his last official appearance, hearing a stay-order request in Yakima, Wash., Douglas's performance was rather disquieting: he sat silently nudging papers and staring at his hands for nearly ten minutes before rendering his decision. The Justices' wait-and-see strategy cannot go on indefinitely. Some of the leftover cases deal with questions of great importance including the testing of a new mandatory death-penalty scheme, and the applicability of federal wage-and-hour laws to local government employees. There is no constitutional provision for unseating a Supreme Court Justice for reasons of health, and Douglas, realizing that President Ford could well replace him with a conservative, is unlikely to step down on his own. But before too long some responsible voices may be calling for his resignation.

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