High court closer to middle than right or left would like
Boston — FORMER Supreme Court Associate Justice Arthur J. Goldberg says that ``the Burger court is not as conservative as some liberals feared and not as conservative as some conservatives hoped'' Justice Goldberg, an appointee of President John F. Kennedy in 1962, served three years on the high tribunal and was considered part of a liberal coalition on the Warren court.
The other living retired associate justice, Potter Stewart, an Eisenhower appointee, served from 1959 to 1981. When Justice Stewart retired, Ronald Reagan replaced him with Sandra Day O'Connor.
Some legal observers felt this last change would mark the end of a liberal-moderate era for the court and the start of a conservative trend that would grip the high tribunal for decades to come. But that has not occurred, as former Justice Goldberg indicates.
Most legal scholars agree that the court under Chief Justice Warren E. Burger has broken less ground in the area of civil liberties and minority rights than it did under the 15-year tutelege of Chief Justice Earl Warren.
But even strong civil liberties advocates, such as American Civil Liberties Union lawyer Bert Neubourne, concede the Burger court has made significant gains, of late, in protecting individual rights -- particularly bolstering the role of women in the workplace.
What most troubles Mr. Neubourne and other liberals is that the Burger court has, at the same time, restricted some Warren court decisions that afforded broad protections to the accused in criminal proceedings. So-called Miranda rulings and Exclusionary Rule decisions (dealing with reading of rights to suspects and invalidating court evidence that is tainted by improper police procedures) have been significantly modified.
Also the votes of the court's avowed conservatives, Associate Justices William W. Rehnquist and O'Connor, have not always been predictable. Justice Rehnquist, whose decisions generally please conservatives, has occasionally come down hard in favor of civil liberties claims. And Justice O'Connor, the court's least-tenured member, surprised and chagrined some of her conservative allies by voting against Alabama's moment-of-silence statute, which provided meditation periods in the schools for the purposes of prayer.
Chief Justice Burger likes to point out that his decisions are not marked by political and ideological considerations -- but by constitutional dictum. But he tends to vote against strong federal controls and regulation of big business and also bucks extended interpretations of the Constitution to protect the rights of felons and others accused of crime. He believes that criminals have no special civil rights that transcend the privileges of all citizens.
In comparing the Warren and Burger courts, Harvard Prof. Laurence H. Tribe, a leading Supreme Court scholar, warns against ``labels,'' which he says are misleading. He also suggests that it is particularly difficult to characterize the present tribunal because of ``strong individuals [associate justices] who don't always take the lead of the chief.''
Professor Tribe further points out that the Warren and Burger styles are vastly different -- with the former more clearly shaping internal court policy and the latter focusing on broader problems of court structure, reform within the legal system with less emphasis on litigation, and prison reform.
Court watchers also stress that another difficulty of pinpointing a specific direction for the Burger court is that certain longtime members of the panel have drifted from earlier philosophies.
For example, Associate Justice William F. Powell Jr., a Nixon appointee, has, in many cases, moved from his conservative position and voted more with court moderates, Harry A. Blackmun and John Paul Stevens. On the other hand, Kennedy designate Byron R. White has of late entrenched himself in the conservative camp of Justices Burger, Rehnquist, and sometimes O'Connor.
What of the future? Some legal analysts predict that circumstances will soon dictate a clear swing to the right. Conservatives court-watchers -- including American Enterprise Institute scholar Bruce Fein and former Solicitor General Rex Lee -- predict that a single Reagan appointment could result in decisions which would: totally eliminate Exclusionary Rule and Miranda protections, sharply limit affirmative-action plans that now provide job preferences for racial minorities, and establish a stronger pro -big-business trend.
Despite some predictions that President Reagan will get the opportunity to appoint up to five new justices by the end of 1988, when his second term ends, none of the members of the current court have indicated an intent to retire or resign.
Five of the current nine are well past normal retirement age. Liberal members William Brennan and Thurgood Marshall, among the most senior in age, hint they may leave the court only if and when a Democratic president is elected. Justice Powell, who last term missed hearing one-third of the court's cases and considered retirement due to ill health, now says he is fully capable of fulfilling his duties.
Mentioned as possible replacements, in the event of a Supreme Court opening, are Robert H. Bork and Antonin Scalia, judges on the US Court of Appeals in Washington, D.C., and Richard A. Posner, who serves on the US Court of Appeals in Chicago.
All are Reagan appointees, ideological conservatives, and philosophically attuned to the administration's stances on judicial retraint and laissez-faire government, explains Yale Kamisar, criminal law expert and University of Michigan law school professor.
Harvard's Professor Tribe holds that Supreme Court appointees tend to ``not disappoint the president who nominated them.'' But he adds, as do other scholars of the court's history, that there have been notable exceptions to this rule.