A Court with No Identity

How the "fluid five "keep the tribunal unpredictable

When Richard Nixon appointed four Supreme Court Justices between 1969 and 1973--Chief Justice Warren Burger and Associate Justices Harry Blackmun, William Rehnquist and Lewis Powell--the President fully expected them to halt, if not reverse, the steady expansion of individual rights that had begun under the activist Warren Court. So did many court watchers. But it has not quite turned out that way.

During its 1978-79 session, which was adjourned last week, the Supreme Court was neither liberal nor conservative. It was distinctly nonideological. Which rights were upheld, and which rights were not, depended not so much on any overarching doctrine as on the facts of a particular case. The court is without an identity, and at times, unpredictable. To the press, the court's decisions on the First Amendment may have seemed all too predictable. But other groups--civil libertarians, police, women, business people --came to the court without any sure idea of where they stand.

The court's term was distinguished chiefly for holding lines drawn in earlier years:

Minority Rights. On the last day of the session, the court upheld massive school busing to desegregate schools in Columbus and Dayton, Ohio. The decisions, reached by 7-to-2 and 5-to-4 votes, reaffirmed a rule established by the court in 1973: if a plaintiff proves that a school board has intentionally segregated part of its system, then a federal judge can order sweeping desegregation for all of the system. In Dayton and Columbus, that meant busing for some 55,000 students. Coming on the heels of the Weber decision in June, which held that employers could give job preference to blacks to remedy "manifest racial imbalance" in the work force, the busing cases signal the court's strong support for affirmative action. For blacks, at least, the message is clear. Says Georgetown University Law Center Professor Dennis Hutchinson: "With the Warren Court you could say, 'Blacks win.' Now you can begin to say of the Burger Court, 'Blacks win.' "

Abortion. The court also stuck to its pro-abortion stand with a decision last week that struck down a Massachusetts law requiring minors to get parental consent. But the decision stopped short of giving minors an absolute right to an abortion, and left the precise boundaries of minors' rights still unsettled.

Women's Rights. Unemployed female heads of household won the right to be paid welfare benefits, like men; divorced women can now also be made to pay alimony, like men. But the court would not go as far as the women's rights movement wants it to, and treat sex discrimination just like racial discrimination. In one important case, Massachusetts vs. Feeney, the Justices rejected the argument that veterans preference laws discriminate against women because 98% of all veterans in Massachusetts are men. The court reasoned that the laws were not meant to hurt women, but to help a group that happens to be mostly male.

Crime. If the Burger Court had been the law-and-order court Nixon hoped it would be, it would have overturned earlier decisions giving broad effect to the Fourth Amendment prohibition against "unreasonable searches and seizures." But this year the court upheld Fourth Amendment claims more often than not. In Arkansas vs. Sanders, for instance, the court ruled that police with probable cause needed a warrant to search a suitcase found in a car. In Delaware vs. Prouse, the court struck down random police checks of drivers' licenses and car registrations. On the other hand, it found no Fourth Amendment violation in "pen registers" used without a warrant by Maryland police to record telephone numbers dialed by private individuals, or with surreptitious entry into a building to install a "bug" authorized by court order.

The court's uncertain course depends largely on how five moderate Justices--Potter Stewart, John Paul Stevens, Byron White, Blackmun and Powell --cast their votes. They are known as the "fluid five" or the "floating center." Explains University of Chicago Law Professor Geoffrey Stone: "The Justices in the middle are not 'principle' Justices, which is not to say they are unprincipled --just unpredictable." The only real ideologues on the high bench are Rehnquist on the right and William Brennan and Thurgood Marshall on the left. Brennan, often a dissenter in the past, found himself in the majority in several key cases this year, and he wrote the majority opinion in the Weber case. That is an indication, says Stanford Law Professor Gerald Gunther, of a less conservative tilt to the court. Isolated on the right with Rehnquist is Burger. Unlike his predecessor, Earl Warren, the Chief Justice has not molded any kind of consensus on the court. In that sense, the high bench is not only not the "Nixon Court," it is not even the "Burger Court."

The year was made livelier by what went on outside the court's marble temple. In April an ABC-TV reporter, Tim O'Brien, leaked the results of some yet-to-be-released high court decisions. The court immediately clamped down on security, limiting the hours when reporters could use the press room in the Supreme Court building and for a few weeks posting a police officer near the room. Then in May, Justice Marshall publicly lashed out at his colleagues for being insensitive to criminal defendants. Marshall, who is reported to be increasingly disaffected from the court, surprised an audience of judges and lawyers by stating that "ill-conceived reversals [by the high court] should be considered as no more than temporary interruptions."

Such public pique is very rare among Supreme Court Justices. The court is an intensely private place that prizes its secrecy. Differences between the Justices more often show up only in their judicial opinions--and in this court's overall lack of coherence. qed

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