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The decision stirred a new round of hand wringing by press defenders, but the outcome may not be as grim as it looks. Only three Justices (Burger, Rehnquist and White) refused to give the press any kind of special access. Stewart argued that the press could bring along its tools of the trade, including cameras, on public tours. "In theory, the press may not have any more access than the public in Stewart's view," said Stanford's Gunther. "But practically, it does." Three Justices (Stevens, Brennan and Powell) argued that both press and public should have greater access. The decision reflects the sensitivity of some Justices to the practical needs of the press. While carefully avoiding any doctrine of special privilege, Justices like Powell, Brennan and Marshall are trying to find a way to protect practical needs of the press in specific circumstances. But other Justices tend to rely on their own intuitive judgments about whether a given ruling will "chill" press freedom. "In the Stanford Daily case," notes Columbia Law Professor Benno Schmidt, "Justice White [who wrote the majority opinion] just doesn't believe that sources will dry up." Notes Gunther: "There is a great deal of misunderstanding and suspicion between press and court. Both sides are at fault."
The court's tendency to grope for a middle way was clearly revealed in its criminal decisions this year. In contrast to the earlier years of the Burger Court, the Justices last term ruled more often in favor of defendants than of prosecutors. Last week the court ruled that juries must be allowed to weigh almost limitless mitigating circumstances, which may force many states to write more lenient death-penalty statutes. They also protected the accused's right to counsel and jury trial in two decisions, and in another refused to permit a "murder scene" exception to requiring search warrants.
A principal device used by the Burger Court in the past to cut down on the judicial activism of the Warren Court was simply to "close the door"—to keep civil rights or constitutional claims out of federal court. But this year the Justices surprised many court watchers by opening a number of doors. Reversing a 1961 decision written by liberal Justice William O. Douglas, the court ruled that municipalities do not enjoy immunity from civil rights suits. Similarly, the court held that high federal officials could be held personally liable for violating the Constitution, except in those "exceptional situations" where their protection is "essential for the conduct of public business."
As for the most pressing issue to face the court this term—affirmative action—the Justices followed up their divided Bakke ruling by refusing to hear a union challenge to a settlement between the Government and AT&T setting substantial goals for promoting women and minorities. The court also sent two other affirmative-action plans—struck down by lower courts—back for rehearing, one on procedural grounds, one "in light of" Bakke.