Much Ado About a Shift to the Right

By Michael S. Serrill

The court favors seniority over minority, police over defendants

For years, liberals and conservatives alike have wondered when the Nixon-Ford-Reagan majority on the U.S. Supreme Court would show its true colors and break with the bold precedents of the tribunal overseen by Earl Warren. For a few days last week it seemed that the time had finally arrived. Prosecutors and police were delighted when the court set new limits on two of the Warren Court's best-known criminal-law doctrines. And Reagan Administration officials could hardly contain their glee after the court ordered a cutback in the scope of some affirmative-action remedies. "It's a slam dunk," exulted Solicitor General Rex Lee, who had urged the court to reach that result. Civil rights leaders lamented that affirmative action had been set back 20 years.

But most legal scholars who studied those decisions could not understand what much of the hub bub was about. They pointed out that the three rulings were very narrowly defined and were likely to have only a limited impact on both criminal procedure and civil rights.

In the affirmative-action case, the Justices favored seniority systems over minority claims, ruling that courts generally cannot order the layoff or demotion of white workers to preserve jobs for less senior blacks. In the two criminal cases decided, the court held that police need not always read an arrested suspect his Miranda rights immediately if the public safety is threatened, and that illegally seized evidence can be introduced at trial if its eventual discovery through other, legal means was "inevitable."

While these decisions indicate that the court is on a conservative tack, concluded Vanderbilt University Law Profes sor Thomas McCoy, they "are not major, earth-shattering departures from fundamental principles."

The source of greatest comment--and confusion--was the Justices' 6-to-3 finding that a lower federal court had no right to force the layoff or demotion of senior white fire fighters in Memphis in order to protect black hiring and promotion gains made under a court-approved affirmative-action plan. That 1980 plan required that at least 50% of all new employees be black until two-fifths of the department was black. Responding to long-term pressure that prompted the plan, Memphis had in creased the proportion of black firemen from 4% in 1974 to 11 1/2% in 1980.

Then came a 1981 budget crunch. The city announced that it would follow the seniority system negotiated with the union and start laying off those who had been most recently hired, including many of the new black fire fighters. But a federal district court ruled that the city could do nothing that would reduce the proportion of blacks in the department. As a result, three whites lost their jobs to blacks with less seniority. Although the layoffs lasted only a month, the city of Memphis and the union pressed their suit against this violation of the seniority plan to the Supreme Court. Writing for the court, Justice Byron White found that Title VII of the Civil Rights Act of 1964 "protects bona fide seniority systems" unless the plans are intentionally discriminatory or black workers can show that they were individually the victims of hiring discrimination.

eagan Administration officials and many civil rights leaders swiftly read White's opinion as invalidating all affirmative-action plans that involve employment quotas. There are hundreds of such plans, both voluntary and court-ordered, in force in businesses and public agencies across the nation. Justice Department Civil Rights Chief William Bradford Reynolds held a news conference to announce that in light of this "exhilarating" decision, his office would carefully review all affirmative-action employment plans in which the Justice Department had played a part. Civil rights leaders went into a display of public mourning. Maxine

Smith, executive secretary of the Memphis branch of the N.A.A.C.P., said the day of the court decision was "one of the most depressing" of her life. District Fire Chief Carl Stotts, who brought the original suit, declared that "affirmative action has been thrown right out the window." He was joined in this assessment by many civil rights activists.

But constitutional scholars said that both the jubilation and despair were exaggerated. Duke University Law Professor William Van Alstyne argued that it was "quite a narrow decision" that applies only to situations in which legitimate seniority systems are in place. Other experts agree with Van Alstyne that affirmative-action quotas and goals would still be legal as long as they do not result in the displacement or demotion of white workers.

There was less uncertainty about the meaning of the criminal-law rulings no less controversy about the direction of the court. The first of the two decisions last week re played a classic case in legal annals.

In 1969 Robert Williams was convicted of murdering Pamela Powers, 10, in Iowa. That conviction was appealed to the Supreme Court and was thrown out in 1977 because of a famous illegal police interrogation--the "Christian burial" ploy.

While detectives were transporting Williams across the state, and be fore the corpse had been discov ered, one officer pleaded with him, saying that the parents "should be entitled to a Christian burial for the little girl." Moved, Williams led them to the body. Since police had promised his lawyer they would not interrogate him, the court threw out his statements. Williams was convicted at a second trial, in which evidence about Pamela's body was admitted but not Williams' involvement in the discovery.

In a 7-to-2 ruling, the court okayed that second conviction.

Chief Justice Warren Burger noted that 200 volunteers were searching for the child's body at the time Williams led po lice to it, and that it would have been "inevitably discovered" by lawful means without his help. That being so, wrote Burger, it "would reject logic, experience and common sense" to apply the exclusionary rule and bar the evidence. This "inevitable discovery" doctrine had been previously adopted by almost all other courts, so it was no surprise to scholars that the Supreme Court also approved it.

Last week's second criminal decision involved a New York City woman who told police that she had been raped by an armed attacker who fled into a nearby supermarket. The officers quickly found and subdued the man. After handcuffing Benjamin Quarles, one of the police noticed an empty shoulder holster and asked, "Where is the gun?" Quarles nodded toward a stack of cardboard cartons and said, "The gun is over there." Later he sought to exclude the use of his statement and the gun as evidence, arguing that he had not been warned of his right to remain silent and his right to counsel before leading police to the weapon.

By a 5-to-4 vote the Supreme Court turned Quarles down. Because of the dangers of the hidden gun, declared Justice William Rehnquist, "overriding considerations of public safety justify the officer's failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon." The dissenters included Sandra Day O'Connor, in a rare split with her fellow Arizonan. The new public-safety exception, she complained, "blurs the edges" of what had been a clear rule.

These new modifications of two major Warren Court rules raised civil libertarian hackles not so much for 'their specific effect as for a decision they may presage:

the possible approval, by the end of this court term, of a "good faith" exception to the exclusionary rule. Such a decision would allow illegally obtained evidence to be introduced at a trial if police seizing the material had reason to believe they were acting within the law. It would complement a series of pro-death penalty cases, approval of preventive detention for accused juvenile offenders, and two major decisions expanding the right of law-enforcement officials to search for contraband and illegal aliens.

To some experts, the criminal-law decisions, together with the Memphis civil rights case, a decision allowing public sponsorship of Nativity scenes, and a ruling allowing bankrupt companies to cancel their labor contracts, portray a Supreme Court that is accelerating its drift to the right. The court, says Harvard Constitutional Scholar Laurence Tribe, "is earning the label of a profoundly conservative, indeed almost right-wing institution." But Tribe's remains a minority viewpoint. To most court watchers, this term has been just another session in which the court has chipped away at the major Warren Court decisions without really changing them.

Says University of Chicago Law Professor Philip Kurland: "The direction is clear, but it's not a new direction."

Yale Law Professor Paul Gewirtz agrees but adds an intriguing caveat.

"Law changes in patterned ways," he observes. "One way is to make exceptions to flat rules. That has been the hallmark of this court." But the political implications and the perception of a move to the right--however slow or swift--also make a difference. Says he: "How one perceives the law very often shapes what it becomes."

--By Michael S. Serrill.

Reported by Anne Constable/Washington and JohnE. Yang/Atlanta, with other bureaus

With reporting by Anne Constable/Washington and John E. Yang/Atlanta, with other bureaus