The Supreme Court: Mood of Uncertainty

As the nine Justices of the Supreme Court reassemble in Washington this week to begin a new session, all the panoply will be familiar. The robed Justices will file behind the long Honduras mahogany bench as usual and take their seats in the high-backed black leather chairs set against red velvet draperies. The bronze clock will strike 10 o’clock, and the court clerk will intone the traditional “Oyez! Oyez!”

But though the symbols of constitutional majesty are still in place, the court faces as much uncertainty as it has ever known in its 178-year history. Justice Abe Fortas will sit to the right of his colleagues, and not in the chair that he had hoped to occupy; the seat in the center is still filled by Chief Justice Earl Warren, who is anxious to end his Supreme Court career. Three other Justices besides Warren are old enough to be thinking about retirement: Hugo Black, 82, John Marshall Harlan, 69, and William O. Douglas, 69. Lawyers who are preparing their cases for the court as it is now constituted may find themselves presenting those cases to other Justices, men who may well have different judicial philosophies.

Birthday of an Amendment. Despite the uncertainty of the future, Justices Warren, Fortas and William Brennan took time last week to celebrate the past. The occasion was the 100th anniversary of the 14th Amendment, and at a centennial commemoration sponsored by N.Y.U. Law School, all three defended the use of the amendment’s “due process clause” to strike down state laws that discriminate against Negroes or deny federally guaranteed rights. Brennan called the 14th “the prime tool by which we as citizens are striving to shape a society which truly champions the dignity and worth of the individual.” Perhaps with the court’s Senate critics in mind, he traced the history of the amendment arguing that it was the original intention of Congress to have the court interpret and enforce its guarantees—Warren said that the court has for too many years had “sole responsibility for giving content and meaning to the broad mandate of the 14th Amendment.” He welcomed “the new willingness” of Congress and the President to share in the task through civil rights legislation. Pointing out that court decisions have helped awaken the nation’s conscience, Fortas said that the past 15 years have brought “the revitalization of the 14th Amendment and a return to the Constitution.” But he warned of “a new and savage struggle between freedom’s believers and its destroyers.”

Deep in Politics. That struggle is bound to drag the court into more controversy. Right from the start of its new session, it will be deeply mired in politics. High on the docket is a plea from George Wallace, who is asking his favorite scapegoat to put his name on the ballot in Ohio—the only state where he has not made it.

Another issue calling for prompt action concerns the Viet Nam war. Nine suits brought by a total of some 489 reservists seek to have the court declare unconstitutional the 1966 Act of Congress under which they were ordered to Viet Nam. They claim, in part, that Congress cannot give the President such powers in the absence of a formal declaration of war or a national emergency. Justice Douglas ordered a delay in their departure to Asia. But the court majority, which has been reluctant to decide issues involving the legality of the war, is not likely to find much merit in the reservists’ case.

Police Powers. Though the docket does not promise many trail-blazing cases this year, the Justices may begin laying down some guidelines to protect the rights of the poor. In one case, a North Carolina woman claims that her eviction from a public housing project was illegal. Also being challenged are welfare laws in two states and Washington, D.C., that require a person to be a resident for a full year before he can be eligible for payments. A favorable decision for the plaintiffs may doom similar residency rules in 41 states and bring benefits to about 100,000 poor people.

The right of dissent and the question of police powers over demonstrators are at issue in a number of cases. Negro Comedian Dick Gregory, for example, seeks to reverse a 1965 disorderly conduct conviction in Chicago’. Arrested during a demonstration near Mayor Daley’s home, Gregory is challenging the police claim that they had a right to disperse peaceful protesters simply because angry hecklers near by might have become violent. Among the draft-dissent cases, the most important is an appeal from James Oestereich, who was reclassified from 4D (divinity student) to 1A by his draft board last year after he turned his draft card in to the Justice Department. At least 18 other suits that question the Selective Service System’s power to use the draft as punishment for antiwar activities are currently pending in federal courts. Also under attack this year are capital-punishment laws, a federal.law requiring marijuana dealers to register with the Government and an Arkansas “monkey” law that forbids the teaching of evolution in the schools of that state.

Sensitive to Criticism. Some court scholars argue that the majority of Justices have now become sensitive to widespread criticism, and during the coming year are likely to pay a little more attention to public opinion. Actually, the court has done a bit of retrenching in the past two years, and may well leave more and more of the big issues to Congress. Still, the libertarian doctrines developed by the Warren court during the past 15 years are firmly rooted. They are not likely to be abandoned by the men who now sit in the chamber.