Was it an earthquake, or just rearrangement at Supreme Court?
Boston — Harvard law professor Laurence H. Tribe talks about last year's US Supreme Court rulings in terms of a constitutional ''earthquake.'' He says that many of the justices' doctrines, particularly in the area of criminal rights, did ''irreversible harm to the dispossessed and powerless.''
On the other hand, Paul Bator, deputy attorney general of the United States, sees no such seismic implications. He says the court was just engaging in ''modern rearrangements ... a drawing back from the frontiers'' of the liberal rulings of the high tribunal lead by Chief Justice Earl Warren in the 1950s and '60s. In his view, the court was setting the house in order.
But Mr. Tribe and Mr. Bator agree that the 1983-84 Supreme Court term may have easily set the stage for what may come this year.
Whether last term's prologue was a tremor or a tidying, the nation's top-drawer ''judicial nine'' go back to work today amid mixed public signals. From the left comes sharp criticism and concern that the court is steadily chipping away at individual protections; from the right, strong urgings to further shore up past judicial efforts to punish criminals and protect victims.
From a pool of more than 1,000 cases offered on appeal from lower courts, the justices will choose about 160 for review. Half that number are already on the docket. The new term's much-sought one-hour hearings will start with a debate over federalism arising from a Texas case in which the justices must determine whether Congress may impose minimum-wage and overtime laws on municipal transit systems. Other issues the justices must grapple with range from antitrust and environmental law to voting rights and sex and age discrimination.
Court watchers, however, say criminal-justice cases and those dealing with church-state relationships will likely command the main public interest.
These key questions surface in connection with rights of prisoners and the accused: Will the court further restrict, or even abolish, use of the ''exclusionary rule'' (which disqualifies evidence illegally or improperly gathered by the police)? Will other longtime legal safeguards, such as Miranda rights for crime suspects and those in police custody, be pruned in the interest of public safety?
In the church-state area: Will the justices blur the line of separation between religion and government or reinforce the ''wall'' of separation?
Not coincidentally, criminal justice and religion are playing key roles in the current presidential campaign. President Reagan has prodded Congress - regardless of Supreme Court action - to eliminate the exclusionary rule, reinstate the death penalty, and take further action that would restrict criminals' protections and bolster victims' rights. The President is also a strong backer of school prayer, and he advocates a constitutional amendment to reinstate it. And he favors public aid to parochial and private schools. But even a strong civil libertarian and court critic like Professor Tribe doesn't accuse the high tribunal of pandering to Reagan interests. But he notes that the court is well aware of the public ''mood.''
Some analysts say the court set the stage for major restrictions on criminal rights last term by adopting a ''good faith'' exception to the exclusionary rule. This exception allows the use of tainted evidence in a trial if police innocently disregarded procedures. Further, illegally gathered evidence will not be disregarded if it is determined that it would have ''inevitably'' been found by other legal means. In the area of Miranda warnings - the legal requirement that police read a criminal suspect his rights - the court modified this requirement when ''public safety'' is at stake.
Bruce E. Fein, general counsel to the Federal Communications Commission and Supreme Court-watcher for the conservative-leaning American Enterprise Institute , flatly predicts that ''Miranda, like the exclusionary rule, is on the way out.''
The court will get an early opportunity to at least further modify these protections when reviewing an Oregon case Wednesday. The main question: When a defendant gives a self-incriminating statement in violation of the Miranda rule, and later gives a legally elicited confession, must that latter confession be suppressed? Yes, said Oregon's court of appeals. But based on recent rulings and judicial philosophy, the US high court may well reverse this, and thus, legal observers say, deal Miranda another crucial blow.
A New Jersey case, being reargued from last term, originally asked whether schoolchildren suspected of crime are entitled to the same criminal protection as adults. The state's Supreme Court decided they are, dismissing an indictment in a case in which evidence had been obtained by a vice-principal in violation of constitutional protections. Although it is an important test of the exclusionary rule, experts say the outcome of this case now may hinge narrowly on whether the school official had ''reasonable suspicion'' of a felony.
A trio of important religion-related cases are already on the court's docket, and more may be added later. Many analysts say that if the court decides to allow a voluntary ''moment of silence'' in Alabama's public school classrooms and upholds a Michigan law that sends public school teachers into parochial schools to teach nonreligious courses, the traditional ''wall of separation'' between church and state may be reduced to rubble. The third case raises the issue of whether a state may require private employers to give their workers a day off for Sabbath observance. Connecticut's Supreme Court rejected this concept, saying that such state action ''advances religion.''
Jesse H. Choper, dean of the law school at the University of California at Berkeley, predicts that the US Supreme Court - based on emerging philosophy - will likely let stand the ''moment of silence'' statute and may even sustain the Michigan law. Professor Choper says the court's newly devised philosophy is one of ''accommodation'' of religion by the public sector, particularly where there is no intrusion on those who reject it or where no denomination is favored over another.
But civil rights groups, including the American Civil Liberties Union and Americans United for Separation of Church and State, oppose this kind of church-state involvement. They see it as a clear violation of the First Amendment of the US Constitution.
The court's curtain rises amid speculation that this term could be a watershed in terms of decisions that could lead to important changes in the course of justice in the US for a long time to come. Also, at least five justices are well beyond normal retirement age. Whoever is elected president on Nov. 6 will likely have the opportunity to appoint several justices, shaping the direction of the high tribunal into the 21st century.