After Douglas... What Now For The Supreme Court?

After Douglas...What Now for the Supreme Court?

By Alan Lenhoff

   When Richard Nixon left the White House, he left a parting gift for the American people- a time bomb ticking in the U. S. Supreme Court. The bomb, poised to deliver its load in a series of blasts, was cleverly disguised as four new conservative justices. When its destruction is complete, Americans wiII be Iikely to find some of their most basic freedoms buried in the rubble.

   Nixon was the beneficiary of blind luck. He was much like a drunk who chances upon a slot machine that has been played unsuccessfully all night and hits three cherries with his first nickel, sending a torrent of silver clattering to the floor. Nixon carefully recovered every precious coin.

   While most presidents are under the check of the Supreme Court, Nixon was able to build his own court because he occupied the Oval Office at a time when the turnover of justices was unusually high. Had he not been forced from office, he might have selected a replacement for William O. Douglas, long the court's leading liberal.

   Today, civil libertarians are alarmed at the new court's potential for destruction of freedoms. While the liberal Warren Court was an activist in protecting and furthering civil liberties, the Warren E. Burger Court is threatening to return the court to being an apologist for police who beat confessions out of prisoners.

    One of the new court's first key rulings came on Dec. 11, 1973, when it ruled 6-3, in U.S. vs. Robinson, that police can search any person who is lawfully arrested.

   Predictably, the American Civil Liberties Union (ACLU) hit the ceiling. The ruling, the ACLU said, would allow police to search almost anyone- even a person arrested for parking overtime. Indeed, defendant Robinson's arrest had been for not having a driver's license, and a subsequent search had uncovered narcotics.

   The ruling pushed aside a 1969 Supreme Court decision that searches were justified only to check for weapons, a means of escape, or evidence that might later be destroyed- I none of which would seem very likely in a traffic offense.

   Last month, the Burger Court ruled that teachers have a right to paddle disobedient students. Larry L. King, in New Times magazine, was moved to write that "...while the Warren Court for almost twenty years dealt in the expansion of personal freedoms, the Burger Court is satisfied to recommend thumpings for the young."

   In another recent ruling, Nixon appointee Harry A. Blackmun upheld a Nebraska court order banning publication of court testimony and added that a court can restrict publication of trial proceedings as it sees fit.

   Blackmun was one of the justices who dissented from the court's 1971 ruling allowing publication of the Pentagon Papers by the New York Times and Washington Post.

   Then, on Dec. 9, the court continued its attack on civil liberties by weakening the so called "Miranda decision" of 1966, ruling 6-2 that police can continue to question an arrested person who has already told them he wishes to invoke his right to remain silent.

   The Miranda decision, which set strict guidelines on informing prisoners of their rights, had been hailed as a milestone in preventing police from eliciting confessions by coercion or beatings.

   In their dissent from the Dec. 9 opinion, Justices William J. Brennan and Thurgood Marshall wrote: "Today's decision virtually empties Miranda of principle, for plainly the decision encourages police asked to cease interrogation to continue the suspect's detention until the police station's coercive atmosphere does its work and the suspect responds to resumed questioning."

  For those who like to keep score, here's how the court stacks up today:

-Four conservatives (All Nixon appointees: Burger, Blackmun, William H. Rehnquist and Lewis F. Powell, Jr.).

-One so-far "unknown quantity," Ford appointee John Paul Stevens,

- Two "swing" votes (Potter Stewart and Byron R. White).

- Two liberals (Marshall and Brennan).

 While Douglas served on the court, a liberal-swing coalition could sometimes hold off the four Nixonites. That may soon end abruptly.

   Douglas, in poor health for several years, had told friends he hoped to last through the Ford presidency. He had not forgotten Ford's 1970 call to impeach him from the court, and was chagrined by the thought that Ford might choose his successor.

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 When Douglas' illness forced him to retire Nov. 11, Ford presumably straight-faced, lauded Douglas for his "distinguished years of service" and "firm devotion to the fundamental rights of individual freedom and privacy under the Constitution."

   Ford's choice for Douglas' replacement was the 55-year-old Stevens, a Chicago court of appeals judge who won unanimous confirmation in the Senate last week on the basis of his top rating by the American Bar Association.

   Most see Stevens as a centrist with conservative leanings, but caution that acquiring the robes of the high court often has unpredictable effects on a person.

   Others say he has no ideology, and cite several examples of his "inconsistency:" A "liberal" dissent he wrote to an opinion upholding the jailing in Wisconsin of activist priest Fr. James Groppi, in which he wrote that to "resort to procedural expediency may facilitate an occasional conviction, but it will also make martyrs of common criminals"; and a "conservative" dissenting opinion he wrote on a ruling upholding women's rights under Title VII of the Civil Rights Act.    For Ford, the choice was a pragmatic one. With Ronald Reagan's footsteps being amplified by the media, Ford needed a nominee who would not be controversial to the Senate. Stevens's highly regarded by lawyers and judges, lauded as a good writer and a hard worker. He is seemingly quiet and non-controversial, and was not enough of an ideologue to scare any Senate faction.

   The only outcry against the Stevens appointment was led by groups that had little or nothing to say in deciding on the nomination.

    One such opponent was Karen DeCrow, President of the National of Organization for Women (NOW), who said she found Stevens' opinions on feminist and civil liberties issues "shocking."

   Certainly, it did not help Ford win support from feminist leaders to hint that he might take the first lady's advice and nominate the first woman in history to the Supreme Court when later, it was revealed that no women appeared on his final list of six prospective nominees.    Some liberals have resigned themselves to the belief that Stevens was the best choice they could have expected from Ford. It would not have surprised them if Ford had nominated a more conservative person, and they suggest that a moderate justice might be more successful  influencing the Nixon appointment than a strong liberal casting dissenting opinions into the wind.

   Others are irked that the court seems to be without a true intellectual, a person qualified not r only to rule on tough legal issues but also to help resolve broad social issues. They say the country needs another justice like Felix Frankfurter, even if that person has no prior experience on the bench.

 The test of the new court should come soon. Among the key issues t may rule on this term are the death penalty, new federal election reforms, school busing, search and seizure, affirmative action hiring, and discrimination in housing.

    It is wise to remember, however, that Supreme Court rulings may not be as important to our daily lives as common wisdom would have us believe.

   Court rulings cannot dissolve the prejudice of a racist employer . Nor have "landmark" rulings on desegregation, censorship or free speech had much effect on such institutions as the public schools. Twenty-one years after the court ruled that separate but equal schools are iIlegal, American schools are still far from being integrated.

   Says Boston University Political Science Professor Howard Zinn on free speech: "On the Street, it's the police who decide if that right exists. The Supreme Court is far away - and cannot help at that moment when the policeman says 'Get going!' (or something more pungent)."

   But while dictates of the high court may not always be practiced on the streets, rulings against personal freedoms will ensure that "- those rights will never come under protection.

   With the Nixon appointments, the Supreme Court has come to an end of its liberal era- a period in which the early liberal dissents of Douglas and Justice Hugo Black (sometimes referred to as Roosevelt's revenge on the conservative court he hated) evolved into the majority view of the Warren Court.

   In an appearance in Ann Arbor several years ago, Douglas described a conversation he had with Black, whose sharp mind had perhaps lost a bit in his latter years.

   Black told Douglas he noticed that newspapers sometimes referred to "strict constructionists" on the court. You and I have fought to guarantee civil liberties, Black said. Surely they must be talking about us, he reasoned.

    "No, Hugo," Douglas responded. "I don't think they are talking about us," he said with a touch of regret.

Alan Lenhoff is a farmer editor of the (University of) Michigan Daily, now working as a reporter for the Oakland Press and as a free-lance writer.