The Supreme Court: Beginning of the Burger Era

When the Supreme Court convenes this week, the absence of Earl Warren will mark a new era—but the presence of Warren Burger will not make a dramatic difference. For one thing, Chief Justice Burger will lack the support of his fellow Nixon nominee, Clement Haynsworth of South Carolina, whose approval is by no means certain (see THE NATION). For another, Burger shows no sign of wanting to lead the court in a headlong retreat from the past 16 years. “We are unlikely to see a sudden return to some strange, anti-defendant, anti-Negro, anti-reapportion-ment court,” says Professor Arthur Sutherland of Harvard Law School. “Time is running the other way.”

At least in its first term, the Burger court will be unable to avoid some of the most explosive issues facing the country. Already before the court are cases that concern:

∙RACIAL EQUALITY. The N.A.A.C.P. Legal Defense Fund lawyers have asked the court for a prompt ruling on the recent delay in desegregating Mississippi’s schools. If the court agrees to hear the case, the result could be an early clash with the Nixon Administration, which took the unprecedented step of requesting the halt. Justice Hugo Black, who supervises the Deep South Fifth Circuit for the high court, has asked the Government to reply to the fund’s petition by Oct. 8. Last week Assistant Attorney General Jerris Leonard asserted that a decision to compel desegregation throughout the South this year would be unenforceable. To such critics as the Justice Department’s own civil rights lawyers, this seems a strange stance for an Administration dedicated to law enforcement.

∙CRIMINAL JUSTICE. One of the oldest issues on the docket is capital punishment. Paradoxically, the crime-conscious U.S. has not executed a single person in more than two years. Whether that moratorium continues may depend largely on the fate of a Negro named William Maxwell, who has been condemned to death in Arkansas for raping a white woman. Among other things, Maxwell argues that his 14th Amendment right to due process was violated because there were no statutory standards to govern the jury’s decision on whether he should be executed or imprisoned. Although the Justices are quite unlikely to abolish capital punishment, they could rule in favor of Maxwell on the jury issue, which might persuade the states to set limits on how and when the penalty can be imposed.

∙RIGHT OF DISSENT. The judges will hear four cases that test whether a man threatened with prosecution under a state law for exercising his right of free speech may ask a federal court to strike down that law. In one case, a group of antiwar demonstrators in Texas had persuaded a federal court that it did indeed have the power to void a state law that banned “loud and vociferous language calculated to disturb.”

∙RIGHTS OF THE POOR. The most important welfare suit now on the agenda argues that California may not revoke a person’s benefits without first granting him a hearing before an impartial referee. California regulations, like those of many other states, entitle a person to such a hearing only after he is notified that his payments will be terminated. Thus, a person’s benefits often cease before he has a chance to challenge the decision by presenting evidence to someone in authority besides his caseworker.

∙CHURCH AND STATE. A New York City case attacks as unconstitutional the property-tax exemption enjoyed by religious organizations. The petitioner argues that this tax break violates the rule of separation of church and state.

With the composition of the court changing, who will become the dominant personality? Several law professors discount Burger in favor of Black, 83, who shaped much of the court’s doctrine during the Warren era. “He is the only man whose philosophy will appeal to a majority of old and new members,” says the University of Chicago’s Philip Kurland. Others believe that Justice Brennan will lead the court in certain areas, such as free speech. Harvard Law Professor Alan Dershowitz predicts great influence in some cases for Justice John Marshall Harlan, the Warren court’s most frequent dissenter against the use of judicial solutions for social problems. The Burger court, more often than not, may find itself espousing Harlan’s judicial philosophy, which Dershowitz says is “You don’t reverse decisions no matter how wrong you think they are.”