Court at the Crossroads

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often they are written by clerks, young lawyers with brilliant academic records who serve a one-or two-year term with a Justice. (Clerks have proliferated in the past two decades. Until the late 1940s, Justices usually had one clerk each; now they are permitted four, although Justice John Paul Stevens hires only two.) In the names of their Justices, clerks tend to quibble over small points—a "battle of footnotes," scoffs Blackmun. Says one former clerk: "It's a heady experience. Every footnote you write, you think, 'Man, oh, man, this is law.' "

The Justices are too busy for much leisurely conversation. Their work load has steadily increased as Congress has passed more and more complex legislation and the court has expanded its reach. (Lawmakers often pass the buck by writing vague laws, leaving it up to judges to decide what is meant.) The court hands down about 185 written decisions a year, and it is asked to decide an overwhelming 5,000 cases annually, up from 1,000 at the beginning of the century.

Many of those cases do not call for ringing declarations but rather for nuance and compromise. In fact, it can be argued that the court's tendency to be pragmatic is in many ways a virtue. The Warren Court established broad principles, but it left some very difficult dilemmas. For example, it made an important legal breakthrough by striking down racial barriers in the landmark school-desegregation case of Brown vs. Board of Education in 1954. But the Burger Court was faced with a trickier question 24 years later: Is it legal to discriminate against whites to remedy the effects of past discrimination suffered by blacks? Perhaps it is not surprising that the court was unable to agree on a majority opinion, and split three ways in Regents of the University of California vs. Bakke (1978). The result of the case: while state universities may not use explicit racial quotas, they may consider race as a factor in admitting students.

Lacking a dominant conservative or liberal wing, the Burger Court is often guided by votes from its centrist members. The court's equilibrium resembles that of a basketball team delicately balanced between passers, shooters and rebounders: one substitution could profoundly alter the character of the group. It matters as much who steps down as who is appointed, since a new conservative Justice would have far more impact if he replaced a liberal than if he took over for a fellow conservative. Here is the court line-up at the moment:

Brennan, 78, along with Chief Justice Warren, was responsible for assembling the court's liberal majorities of the '60s. Warm and outgoing, he is the most open Justice on the court; his detailed notes on the court's weekly conferences on cases are made available to all the Justices' chambers. On occasion, through patience and guile, Brennan can still patch together enough votes to achieve a liberal result. Last term, for example, he assembled a 5-to-4 majority to strike down a law banning editorial comment by publicly funded broadcasters. Far more often, though, Brennan finds himself in dissent. A foe of the death penalty, he is depressed when his Brethren refuse to stay an execution. "The conferences about death cases are very painful," says a former Brennan clerk. His assistants dread calling the Justice, an early-to-bed, early-to-rise man,