A 'warming' court
If some decisions of the United States Supreme Court have been seen as "chilling" the climate for freedom and equality, it has ended its term with two major rulings that have to be welcomed as "warming" ones.
In one case, the court denied that criminal trials can be closed to the public or its surrogate, the press, except when an "overriding" reason can be shown. Thus it affirmed for the first time a constitutional right to access to information to put beside the often upheld right to dissemination of information.
In the other case, the court approved a legislative provision that set aside for minority contractors 10 percent of the spending in a massive federal public works program. Thus it affirmed, as declared in Chief Justice Burger's opinion, that such provisions are "within the power of Congress 'to enforce by appropriate legislation' the equal protection guarantees of the Fourteenth Amendment." In the present instance, he said, Congress had not sought to give select minority groups "a preferred standing" in the construction industry but had launched a remedial program to put them on "a more equitable footing" with respect to public contracting opportunities.
Associate Justice Powell sounded what ought to be the keynote of this decision and the governmental affirmative action programs likely to be encouraged by it:
"The time cannot come too soon when no governmental decision will be based upon immutable characteristics of pigmentation or origin. But in our quest to achieve a society free from classification, we cannot ignore the claims of those who still suffer from the effects of identifiable discrimination."
Coincidentally with the decision came the report of a New Jersey citizens group indicating the benefits and pitfalls of remedial programs. It noted that minority-owned companies had earned more under the program with the 10 percent set-aside, even though many grants failed to reach this figure, than they ever had before under a government-sponsored program in the state. But the head of the group criticized some minority contractors who allegedly had simply acted as fronts for white contractors who performed the work and received the money.
The moral seems to be, as it has so often been during the civil rights struggle, that laws may be necessary to attain remedies -- but progress finally depends on a spirit of integrity and equity that not only observes the law but operates in the absence of specific legal requirements. This is what must be established to achieve Justice Powell's goal of a time when percentage set-asides are not needed. Meanwhile, the court has warmed the climate for far-reaching amelioration of discrimination under congressional auspices.
The warming attitude was especially evident in the case guaranteeing access to criminal trials. It would seem to specifically counter the chill on such access caused by last year's confusing decision permitting the clossing of certain pretrial hearings. Since that decision there have reportedly been more than 260 instances of judges closing criminal proceedings wholly or in part.
The question was whether it was constitutional to exclude reporters from a trial itself, in this case a short, secret one in Virginia, where an accused murderer went free. The court not only affirmed the right of the public to attend the trial but seemed to go out of its way to ease any previous impression of hostillity toward the public's representatives, the press. It is important for the public to see its system of justice in operation, said Chief Justice Burger. Quite so.