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Last year the court gave local jurisdictions the right to apply their own standards in determining what is illegally obscene. But this year it unanimously overturned one such local ruling while upholding another. Now the way is open for an endless string of smut cases to be appealed to the Supreme Court. In school desegregation disputes, the court has seemed ambivalent, particularly on the question of busing. After one decision that appeared to encourage busing, Burger issued an unusual "memorandum" suggesting that lower courts were misreading the ruling.
On some important occasions, of course, the court has left no doubt about where it stands. It has struck down state laws barring abortion, for instance, and extended the guarantee of counsel to persons accused of misdemeanors that carry a jail term (previously the guarantee was for felony defendants only). The court unanimously rejected the Administration's claim of authority to install wiretaps without warrants in domestic national-security investigations.
Part of the reason for the zigzag effect is that Burger has been less adept than Warren was in building consensus—or even promoting amity—among the nine jurists. Stories about bickering behind the bench have been surfacing regularly. Promoting harmony would not be easy for any Chief Justice now because of the court's delicate ideological balance. There are three consistent conservatives (Burger, Blackmun, Rehnquist), three liberals (Douglas, Brennan, Marshall) and three swing men who are often unpredictable (White, Stewart, Powell).
Privately Burger insists that the court has ended a long period of transition from the Warren era. "We're moving straight down the road, holding to our course," he has said. "Just because we refuse to extend a rule further, some people say we're backing away from progress made by the Warren Court. That is simply not true. In some cases, the Warren Court went too far. Now we're coming out of that phase."
Any court, of course, can be difficult to handicap on a given case. Despite the predictions of experts, despite the hints expressed in last week's hearing, no one could be completely certain how any of the eight Justices would fall. Yet each Justice has a record that law professors and others continually consult in trying to assess how he may rule in a specific case. TIME Correspondent David Beckwith, a lawyer himself, has surveyed such experts and offered this shorthand guide to the eight Justices as they forge their portentous decision:
WARREN E. BURGER, 66, a Republican appointed by Nixon in 1969, believes so strongly in public figures' right to confidentiality that he has often said that "interviewing a judge's clerk is like bugging his phone." Thinks that many newsmen are biased against him personally and against Republicans in general. As an Assistant Attorney General in 1953, argued that the Supreme Court had no authority to review the President's hiring and