Verdict on Douglas

The special wooden carts for each Justice--stacked high with papers from the backlog of nearly 1,000 cases that accumulated during the three-month summer recess--were in place in the Supreme Court's conference room. One week earlier than ever before in the court's history, the Justices were on hand to get a head start on the work of the new term. But as the nine men gathered in the room last week, the most troubling task of judging they faced was not to be found in the dry briefs or research papers. How were they to deal with a human condition--the physical and mental capacity of the senior Justice, who arrived for the conference in his wheelchair?

Dismaying Reports. Some of his colleagues had not seen William O.

Douglas, 76, since last April, when he returned briefly to the court after his January stroke. But they had heard dismaying reports, notably that he had sat vacantly for 9% painfully silent minutes before rendering an oral decision at a hearing last month in Yakima, Wash., near his vacation retreat. Had he merely been considering the decision, or had the stroke decisively dimmed one of the brightest minds on the court? Now the Justices would render their own verdict.

"He looks better than he did in the spring," said one colleague, diplomatically evading the central question. As always, the Justices refused to discuss any of the details of the secret conferences.

But TIME has learned that by week's end, although they noted a marginal improvement in his condition, Douglas' eight juniors were not yet convinced that he is fully able to carry out his duties.

Until they are convinced, no critical cases in which his vote could determine the result will be decided.

Last term the Justices had already begun to delay those cases in which they thought Douglas' vote would break a 4-4 tie. The unwritten policy resulted in eleven holdover cases in June--an unusually high number for the court.

Though normally the first order of business in the fall, nine of those cases have not even been set yet for reargument.

"There is now an implicit understanding that no judgment should be released that might well be open to attack later as improperly considered," says a court insider. "There has never been a formal vote of the Justices on that rule, but everyone understands it."

Dreaded Specter. Fortunately, the pending docket, in the view of one Justice, "is the least interesting of any before the court in many years." The most important new case is the constitutional challenge to the 1972 federal campaign spending reform law, which its critics claim restricts the right of free political activity. There is special congressional language in that law directing an early Supreme Court determination. So the Justices may feel they have to resolve it, even if Douglas' is the swing vote. Of course, should five or more Justices other than Douglas agree, that and any other case can be decided normally.

But a long-pending test of mandatory death penalty laws, and the applicability of federal wage and hour legislation to local government workers are among the serious questions that have been pushed aside for the moment because of Douglas' condition. "These matters can be put off for six months without any problem," says a lawyer who often argues before the court. "But if important questions of national policy, and conflicts between circuit courts of appeal are not even considered, let alone decided, for a year or more, then we're heading for trouble."

The specter most disturbing to many is that Douglas will not only remain disabled but also refuse to retire until after the 1976 presidential election in hopes that Gerald Ford will not be elected. The court's longest-sitting Justice--36 years--could have both a personal and philosophical motivation for putting off retirement. He was once the target of an impeachment effort led by Ford, and with four Nixon appointees already on the court, the liberal Douglas may believe a Ford nominee would solidify a conservative majority for years to come.

But such a staying game would almost surely set off a political uproar, much as did Earl Warren's abortive effort to resign before Richard Nixon took office. "With these politicians looking for issues, it could become a maelstrom," says one court hand. "I'm dreading it.

I'm dreading it in the worst way."

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