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The uneasiness is beginning to surface in court opinions. Last term the Justices ruled that job seniority took precedence over court-ordered affirmative action when the city of Memphis laid off fire fighters. The language of the opinion appeared to go further toward embracing a view urged by the Reagan Justice Department: that in most cases only individual victims of proven discrimination should be compensated by back pay or new jobs. Scoffs Harvard Law School Professor Laurence Tribe: "That is a formula for doing nothing." Individual discrimination is difficult and costly to prove; under most affirmative-action plans, whole classes of minorities get preference over whites in hiring and advancement, regardless of whether they have been personally discriminated against. The rationale is that drastic steps are needed to overcome centuries of racial bias. If the court follows its own reasoning in future cases, sweeping affirmative-action plans could be struck down. As a result of the Memphis case, said Blackmun in his Cosmos Club talk, "affirmative action was pretty well interred."
Free Speech. The Burger Court has been taken to task on editorial pages for being antipress in First Amendment cases, but in fact the record is mixed. The court has generally protected the press's right to print the news, while refusing to give reporters special protection for news gathering. Thus it has struck down prior restraints on publication but refused to give reporters a First Amendment right to shield sources.
Legal experts wonder, however, how the First Amendment will fare when pitted against national-security concerns. In recent years the court has been deferential to Government claims, citing national security last term to uphold a Government ban on travel to Cuba. Liberals fear that in time of political crisis, when freedom of speech and other constitutional safeguards are most needed, the court will not stand firm. "The McCarthy era would be nothing compared with what we could see," warns First Amendment Lawyer Abrams. The prospect of Reagan appointees is not reassuring on this score. The President has said that the publication of the Pentagon papers was "no different from receiving stolen property and selling it for a profit."
Economic Rights. The Warren Court vigorously enforced the antitrust laws in an effort to break up economic concentration. The Burger Court has backed the Reagan Administration's view that the real antitrust test should not be size but economic efficiency. Some experts think that the Burger Court would not have ordered the breakup of A T & T, which was the result of a settlement in a federal district court.
With a few Reagan appointees, the court might well be sympathetic to Administration efforts to loosen pollution standards, open up national parks to economic uses and generally unfetter market forces. A harbinger: last term the court upheld an Administration policy designed to give industry greater flexibility for growth without interference from antipollution laws. The Justices chastised an activist federal appeals court, which had struck down the plan, for meddling in policymaking.
Change is rarely sudden on the Supreme Court. Administrations may shift overnight, and with them national policy, but the