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CRIMINAL LAW. This is the President's special concern, and it is where the court can be expected to retreat most notably from some of the ground broken by the Warren court. The principal target will be the Miranda decision, which requires police to inform suspects of their rights to silence and to counsel. Most authorities—except the police themselves—agree that Miranda and other Warren court decisions have not hampered law enforcement efforts appreciably, if at all. Stanford's Amsterdam claims that in practice the rights are meaningless. One federal trial judge is now betting all comers a quarter that Miranda will be reversed outright. Others have suggested that it will simply be eroded. The right to counsel can probably not be materially cut back; whether it will be extended is another matter. The right to a unanimous jury verdict in criminal cases is also before the court and may go down in the name of increased courtroom efficiency. A possible major target for the future: the current rule that illegally obtained evidence cannot be used.
RACE. Here the experts feel that there will be little retreat. Last spring's authorization of busing in once-segregated Southern school districts was unanimous, and the principle of social equality seems too firmly established both in legislation and in the court's long line of constitutional interpretations since 1954's Brown v. Board of Education. Says Jack Greenberg, director-counsel of the N.A.A.C.P. Legal Defense Fund: "I think the court will protect racial minorities as it has historically. One of the things about conservatives is that they follow precedent." Precedent, however, is not strong on Northern-style de facto segregation, and the court may well not feel required to press into such new territory.
Generally, in fact, except on criminal questions and perhaps on obscenity, the court will not retreat in major ways from Warren court decisions. Observes Constitutional Law Professor Philip Kurland of the University of Chicago: "After you break an egg, you can scramble it. but you can't put it back together." Instead, the Justices will simply not march onward.
"The court will be less venturesome in staking out new positions," contends Kurland's Chicago colleague, Phil Neal. As a result, new constitutional claims by a variety of special-interest groups—tenants, ecologists, the poor, welfare recipients, consumers—are not likely to be warmly received. A similar desire to stay out of new constitutional waters may well doom such pending contentions as the claim that the death penalty is cruel and inhuman punishment, thus a violation of the Eighth Amendment.
Whatever other dangers the new course may contain, the Nixon court will not be issuing the sweeping sort of constitutional commands that even some liberal critics of the Warren era thought amounted to judicial legislating. And with the court out of the legislating business, it is at least possible, though not necessarily probable, that state and federal legislatures will take up some of the issues that used to reach the Justices by default.