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

After Douglas... What Now For The Supreme Court? image After Douglas... What Now For The Supreme Court? image After Douglas... What Now For The Supreme Court? image
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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 wi II be I kei y 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 pólice who beat confessions out of prisoners. One of the new court's first key rulings came on Dec. 1 1, 1973, when it ruled 6-3, in U.S. i's. Robinson, that pólice 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 pólice 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 decisión 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 paddie disobedient I students. Larry L. King, in New Times magazine, was moved to write that "...while the I Warren Court for almost twenty years dealt in the expansión of personal freedoms, the I 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 Wasfliligton Pos!. Then, on Dec. 9, the court continued its attack on civil liberties by weakening the socalled "Miranda decisión" of 1966, ruling 6-2 that pólice can continue to question an arrested person who has already told them he wishes to invoke his right to remain silent. The Miranda decisión, which set strict guidelines on nforming prisoners of their rights, had been hailed as a milestone in preventing pólice from eliciting confessions by coerción or beatings. In their dissent from the Dec. 9 opinión, Justices William J. Brennan and Thurgood Marshall wrote: "Today's decisión virtually empties Miranda of principie, for plainly the decisión encourages pólice asked to cease interrogation to continue the suspect's detention until the pólice station's coercive atmosphere does its work and the suspect responds to resumed questioning." mior those who like to keep score, here's how the court stacks up today: ID -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 liberáis (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 cali to impeach him from the couit, and was chagrined by the thought that Ford might choose his successor. cmitinued on page 8 fttfL Otfté Continued firam page 5 - ' When Douglas' llness -" forced him to retire Nov. 1 1, Ford presumably straight-faced, lauded Douglas for his "distinguished years of service" and "firm " devotion to the fundamental righrts 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 opinión upholding the jailmg in Wisconsin of activist priest Fr. James Groppi, in which he wrote that to "resort to procedural expediency may facilítate an occasional conviction, but it will also make martyrs of common crimináis"; and a "conservative" dissenting opinión he wrote on a ruling upholding women's rights under Title VII of the Civil Rights Act. For Ford, the choice was a flragmatic 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 regarcled 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 deologue 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. . une sucn opponent was liaren UeLrow, President ot the National n Organization for Women (NOW), who said she found Stevens' opinions on feminist and civil Mberties 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 nomínate the first woman n history to the Supreme Courtwhen later, t was revealed that no women appeared on his final list of six prospective nominees. Some liberáis 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 ustice might be more successful _ ■8 . ? r m f n influencing the Nixon Wses than a strong liberal P' casting dissenting opinions nto the wind. Others are rked that the S court seems to be without a true mtellectual, a person qualified not r only to rule on tough legal issues but also to help resolve broad social issues. r They say the country needs another justice like Felix Frankfurter, even f that person has no Dr experience on the bench. fj ■ I V I Vj S IJ V- I I V - 1 j _S II l I I 1 L V V llf I I . 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 lèmember, 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 employei . 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 Ilegal, American schools are still far from being integrated. Says Boston University Political Science Professor Howard Zinn on free speech:"On the Street, t s the pólice who decide if that right exists. The Supreme Court s far away - and cannot help at that moment when the vi- policeman says 'Get going!' (or something more pungent)." But while dictates of the high court may not always be - ticed on the streets, rulings against personal freedoms will ensure that "- those rights will liever 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 Oouglas 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 .1 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 tfie (Univenity of) Michigan Daily, now working as a reporter for the Oakland Press and as a free-lance writer.