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Criminals' Rights. In the 1960s, the Warren Court vastly expanded the rights of the criminally accused and thereby provoked a torrent of criticism accusing the court of hamstringing local police. The Burger Court has chipped away at some safeguards, and may be building to a major reversal. The most likely target is a favorite law-and-order bugaboo, the exclusionary rule, which requires judges to throw out evidence in a criminal trial that police obtained in violation of the suspect's constitutional rights. The rule is designed to deter police from strong-arm tactics. But its occasional effect is to exclude evidence vital to the prosecution's case, so that a guilty defendant goes free on a "technicality."
Last term the court carved out a limited "good faith" exception to the rule: if police "reasonably rely" on a search warrant given them by a magistrate, it does not matter if the warrant is in some way defective (misdated, say, or not specific enough). Court experts say that the addition of two or three conservatives would accelerate the assault on the exclusionary rule. Says Bender: "Very quickly there would be a general good-faith exception leading to, for all practical purposes, no exclusionary rule at all."
Others expect the court to keep shooting holes in the Fourth Amendment guarantee against "unreasonable searches and seizures." Already the Justices have given police more freedom to stop passengers in airports, inspect open fields for drugs, seize evidence in "plain view" and search automobiles. But experts predict that the court will not touch the most basic safeguard, the right to counsel, and doubt that it will greatly trim back the Miranda decision, which requires police to inform suspects of their rights to counsel and against self-incrimination.*
Civil libertarians are predictably gloomy about the trend in criminal-rights cases. Michigan Law Professor Yale Kamisar believes that the court is caving in to public fears of crime, especially drug-related offenses. Particularly unpopular is the exclusionary rule, which is often used to throw out drugs illegally seized by police, thus letting many dealers go free. "The Supreme Court has become the people's court," says Kamisar. "The Justices don't understand that the whole point is to protect minority interests." Not just criminals stand to lose, he adds. The court this term will consider under what circumstances public high school students can be searched by school officials.
Affirmative Action. No matter how conservative it becomes, the Supreme Court is not about to return to the pre-Brown vs. Board of Education era and permit the state to discriminate against racial minorities. But what the court might be willing to do to remedy past discrimination is another matter entirely.
In the past two decades, either on their own accord or at the prompting of the courts, government agencies, schools and private businesses have tried to take affirmative action to provide jobs, educational opportunities and government contracts for minorities. The rub is that these plans sometimes discriminate against whites. While striking down explicit quotas in Bakke, the court has generally backed affirmative action.