The Nation: Nixon's Court: Its Making and Its Meaning

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In Nixon's view, "the delicate balance between the rights of society and defendants accused of crime"—as he put it in his TV address—now needs to be tipped toward society. "As a judicial conservative, I believe some court decisions have gone too far in the past in weakening the peace forces as against the criminal forces in our society." With two of his nominees sitting since last year, the process had already begun to be reversed. Aryeh Neier, executive director of the American Civil Liberties Union, recalled last week that the A.C.L.U. generally won 80% of its cases during Earl Warren's Chief Justiceship; last year the ratio was down to 50%. With the two new appointees, Neier guesses, "our win rate will probably decline further."

Indeed, it is clear beyond argument that the liberal activism that characterized the Warren years is now at an end. But the shift to a new direction that will follow the likely confirmation of Powell and Rehnquist will not necessarily be sharp or immediate.

New Justice Syndrome

Actually, in the short run the President's cause may have suffered a minor setback. The court is scheduled to hear arguments this term on the Administration's contention that it needs no warrant to wiretap persons who it decides are a threat to national security. Rehnquist had been active in the Justice Department during its preparation of the case, and so will probably have to disqualify himself. Since the late Justice Black would probably have supported the Government position, the Rehnquist disqualification will cost the Administration a vote that could be crucial. Rehnquist may similarly have to bow out of some other important cases involving the Government.

Also operating to blunt any sudden shift by the court will be the "new Justice syndrome." Stanford Criminal Law Professor Anthony Amsterdam, a former Felix Frankfurter clerk, explains: "Any time you have a closely divided court and you have one or more replacements, for a time you have an unsettled power balance. People are feeling each other out, seeing where they go, realigning, seeing who their comrades are. There is a kind of disinclination to put people on the spot, to take polar positions which force new people to define themselves."

Nonetheless, a coalition of the four Nixon nominees will almost certainly emerge. Warren Burger and Harry Blackmun have already displayed astonishing unanimity, differing only on one major case last year. Though he is not likely to prove quite so imitative, Powell can be expected to fit often into the Burger-Blackmun approach, which one constitutional law professor describes as "an intuitive sort of conservatism." Not so Rehnquist. His legal conservatism, according to friends, is already highly developed along a more philosophically purist line; he is thought to be more likely than the other three to follow his convictions to the bitter end, regardless of the practical consequences. Despite differences in their lines of reasoning, most of the time the four will vote for the same result—and in the opinion of virtually all court scholars, will frequently attract the extra vote needed to make a majority. What, then, will the court be saying? Likely answers in two major areas:

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