Injustices of the Burger Court

Presidents come and go, but the Supreme Court, through its decisions, goes on forever.

--President Richard M. Nixon, October 21,1971, on announcing his last two appointments to the Supreme Court.

When Richard Nixon walked out of the White House on August 9, 1974, crossed the south lawn and climbed into the helicopter that was waiting to fly him on the first leg of his journey into exile, he turned on the last step and gave his familiar double-V victory sign. That gesture of arrogance was a luxury he deserved, for he had won. Forced out of office one jump ahead of the sheriff, leaving in abject disgrace, he had nevertheless succeeded where he most wanted to. He had cloned the Supreme Court in his image.

His four appointees--Chief Justice Warren Earl Burger, Associate Justices Harry A. Blackmun, Lewis F. Powell, Jr., and William H. Rehnquist--are hard: Almost two thirds of their rulings during the past five terms of the Court favored the prosecution, slightly more than one third favored the accused. During the Earl Warren era, defense attorneys with civil-liberties cases fought to get a hearing before the Supreme Court. Today, they fight to keep away from it.

The Nixonburger four need recruit only one vote from among the three other conservative members of the Court to get a majority, and that has been accomplished with such regularity that the Court has destroyed most laws of privacy, turned the pornography hassle back to local political hacks, critically reduced freedom of the press and given government at every level virtual carte blanche to wire-tap, frisk, bully and defame anyone it wants to.

In short, Nixon, through his Supreme Court's decisions, is going to seem to reign forever.

Here's how some of the police-state verdicts of this Supreme Court could affect you:

• Let's suppose you have a hatful of marijuana in the closet when the police come knocking on your door. They want to search your apartment. You refuse and tell them they aren't about to get in without a search warrant. While they're gone, you intend to get rid of the stuff. They start to leave, but your roommate--who is angry because you won't let him borrow the car--tells the cops that it's OK with him if they search the place. They do, find the marijuana and you are tried and convicted. Was it constitutional for the cops to rummage for the evidence without a warrant and without your approval? Yes, says this Court; the consent of one occupant is enough.

• One day, the cops, without a warrant, break down your door. They think you're running a bookie joint. They can't find any gambling records, but in going through your desk, they do find a letter you've written to your brother telling him that you underpaid your income taxes by $5000. The cops turn the letter over to the IRS, which files a civil suit and uses the letter as evidence in court to collect the back taxes. Clearly, the cops violated the Fourth Amendment, which protects us from "unreasonable searches and seizures," so was it constitutional to use the letter as evidence? Yes, says this Supreme Court; the Federal Government may in a civil proceeding use evidence that was unlawfully seized by the state and that could not be used in a criminal proceeding.

• Rushing to make an appointment, you jaywalk. A cop arrests you for that. But he doesn't let you go on your way. Instead, without a search warrant, he empties all your pockets and finds three shreds of marijuana. What started out as a simple traffic offense winds up with you in court on a drug charge, and you are convicted. Did the cop violate your constitutional protection against unreasonable searches? No, indeed, says the Burger Court; as long as the arrest was lawful, the search could be considered so, too.

• You go into the hospital to have your appendix removed. A local judge who considers you immoral because you've deflowered the daughters of several prominent citizens issues a court order to have you castrated. You don't know about the court order and the castration is accomplished during the appendectomy. You sue the judge, but the case is thrown out. Farfetched? Maybe, but this Supreme Court has ruled that all judges are immune from lawsuits aimed at their judgments, no matter how grotesque those judgments may be.

The Burger Court has ruled that IRS agents may randomly rummage through a bank's files with only a John Doe summons--no particular name--to see if they can stumble upon a depositor whose bank account looks suspicious. The Court's majority viewpoint is that citizens can have "no legitimate 'expectation of privacy' " surrounding their savings accounts, their checking accounts or their loans. As far as this Court is concerned, it's open season on every citizen's most intimate financial dealings.

This Court believes that government agents have the right to rake up and store away all the information, rumors, gossip and falsehoods they can get on you--and then use this to harm you without justification. For example, the police in a Kentucky city distributed a flier containing the photographs and names of several people who had been arrested for shoplifting and who were characterized as "active shoplifters." One person pictured was a newspaper photographer against whom the shoplifting charge was subsequently dropped. The photographer sued, claiming the criminal characterization would hurt his future employment opportunities (in fact, his employers did start giving him worse assignments and he quit). But the Supreme Court ruled that the policemen had done nothing worth being sued for, that nobody has a constitutional right to the protection of his reputation and nobody has any right to privacy except in matters "relating to marriage, procreation, contraception, family relationships, and child rearing and education."

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Nixon's choice of Warren Burger for Chief Justice made his plan for the Court perfectly clear from the outset. Actually, Nixon wanted to appoint Herbert Brownell, a Wall Street lawyer, who, as Attorney General back in the Fifties, had hounded left-wingers out of the State Department and in other ways augmented the McCarthy-Nixon witch-hunts of that dark era. But too many people still hated Brownell, and his appointment would have run into rough sailing in the Senate confirmation hearings, so Nixon chose Burger instead. Burger had served as Brownell's assistant in the Justice Department and had shown such zeal in the pursuit of wrongdoers that he won the admiration of J. Edgar Hoover, who nicknamed him "The Admiral." Burger, Brownell and Hoover all agreed on one thing: There was too much permissiveness in America. They believed that Americans needed a strong hand to keep them in line.

Still pursuing this philosophy, Burger--in 1967 at Ripon College--made a speech that was to hoist him into the center chair on the Supreme Court. It was a simple speech. Burger implied that Americans have too much freedom for their own good, and therefore their freedom should be curbed. ("It is a truism of political philosophy rooted in history," he said on that momentous occasion, "that nations and societies often perish from an excess of their own basic principle.") Very few people paid the slightest attention to his speech, but it was excerpted and reprinted in U.S. News & World Report. Nixon saw it there and liked it very much, for he, too, thought Americans had more freedom than was good for them. Nixon used pieces of the Burger article frequently in his own speeches during the 1968 Presidential campaign.

Burger's belief that the Government should be allowed to violate the Fourth and Fifth Amendments to the Constitution would probably have been enough to get him the job, but he had one other attribute that especially appealed to Nixon: Burger hates the press. To him, the First Amendment is wallpaper, and reporters and editors are mere paper hangers.

This is a personal thing with Burger; it is certainly no secret that he despises most reporters who cover the Court--"young pip-squeaks," he calls them, though most are approaching or past 40. At least half a dozen of these regular Court reporters have law degrees, which probably accounts for the kind of intense coverage that Burger has denounced as too critical. He has told friends he yearns for a return to the 1930-1950 era, when Supreme Court reporters took their handouts and vanished. Because Lyle Denniston of The Washington Star, one of the best of the Court reporters, occasionally implies that the Supreme Court takes short cuts and is intellectually lazy, Burger has bad-mouthed Denniston at cocktail parties and has called editors of the Star in an effort to get Denniston into trouble. The Chief Justice was also enraged when NBC reporter Carl Stern revealed that Burger may have conferred with Nixon about the Watergate litigation that then seemed headed for the Supreme Court, which, if true, would have been an unforgivable breach of judicial ethics. A few reporters are convinced that their seats in the Court press box have been moved to the back row in punishment for critical stories they have written about Burger.

The Chief Justice has been acting like that for a long time. He hadn't been on the Court a year before he got into a shouting match with a CBS-TV crew that he did not want covering his American Bar Association speech. He fired off a letter to Frank Stanton, CBS president: "Who do they think they are?" Burger demanded. "They have no option on my face or voice. Their conduct was disrespectful and outrageous." He warned that the medium had better mind its manners. A few years later, he once again barred TV crews from filming his speech at an A.B.A. meeting in Chicago, saying he didn't want his remarks taken out of context by film editors.

Not only does Burger hate for the press to get close to him, he also hates to see it get close enough to interview other notables. At a White House bash during Nixon's term, he first tried to run interference for Leonid Brezhnev and later for John Connally when he thought they needed "protection" from women reporters who clustered around them. Burger caromed into the crowd of reporters, declaring his intention to "rescue" the Soviet leader. Brezhnev looked at him like he was out of his mind, turned his back on Burger and went right on talking to the reporters. Connally was more diplomatic about it, but the results were the same.

The most injudicious display of Burger's antipress temper is told by writer Steven Brill. At the American Bar Association convention last year, Brill was standing with CBS law reporter Fred Graham when Burger came up, beaming and chuckling and praising a newspaper columnist who had written that journalists had no First Amendment right to withhold subpoenaed papers. He was talking about the case of New York Times reporter Myron Farber, who spent 38 days in jail for refusing to turn his notes over to a New Jersey court in a murder trial. Obviously pleased with the episode, Burger said, "You know, they took Farber off to jail a little while ago." Then he turned to Brill and asked, "Well, do you think you have special privileges like this guy Farber does?"

If freedom of the press gets short shrift from Burger, so does freedom of speech. Three years ago, the District of Columbia city council declared a Judge Harry T. Alexander Day. Alexander is a superior-court judge in the District. He is also a black. As part of the day's festivities, Alexander was driven to several points to make speeches--the Capitol, the Lincoln Memorial, the White House and the Supreme Court Building. He and his caravan had no trouble until they reached the Supreme Court Building, where Alexander climbed the steps and made a speech in which he criticized the "system of dual justice" for blacks. When Burger found out what had happened, he phoned the chief judge of the superior court and said if Alexander ever tried to give another speech on the Court's property, he, Burger, would have Alexander arrested and thrown into jail.

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Those who know Burger best seem to agree that he has a split personality: half pomposity, half insecurity--not an unusual combination in Washington. He washes his hair in beer and uses pomade to keep it brilliantly white. For a national television appearance, he is said to have had his eyeglasses dispatched to the same New York expert who gets the glare out of Walter Cronkite's specs. He considers himself a great connoisseur--a Chevalier du Tastevin, no less--of wines, especially red Burgundies, and reportedly has hundreds of bottles of the stuff in his cellar. About clothes he is foppish. When an attorney showed up in Court wearing a pearl-gray, not a dark, vest with his morning suit, Burger, it has been reported, was "dismayed" at this breach of haberdashery etiquette.

Indeed, the Chief Justice seems to have a resplendent vision of himself. Of living judges, only Burger is pictured on a medallion that is offered for sale in the Supreme Court Building (price: eight dollars). He sees himself as the sole legitimate spokesman for the Court on the world's stage, and one can understand this vanity, for he is a first-rate actor of the old girth-and-profile school of acting. He looks upon his colleagues as vastly inferior in this regard. He told his pals at U.S. News & World Report, to whom he gives a Q.-and-A. interview each year (subject to his editing), that "I would never sit on the bench if there were a television camera in the room," one reason being that he considers commercial TV a "sleazy operation" and another reason being that some of his colleagues would "ham it up." In fact, he complained, some of them ham it up right now if the courtroom has a big enough audience. (In the same off-the-cuff interview, he also allegedly told the U.S. News staff that when his colleagues from the Court came to visit, he gave them cheap jug wine, not his good stuff, because they have vulgar taste buds.)

Windy, shallow, corny, unimaginative--Burger makes a lousy leader on the bench, but those qualities would have made him a natural politician. Indeed, he got his leg-up in life as a political functionary and his political instincts are still so strong that he is insensitive to the proper decorum for a judge. He was well-known in Republican circles as a manipulator before he gained any fame at all as a jurist; he served as campaign manager for Harold Stassen in 1938, when Stassen won the governorship of Minnesota, and in 1952, he served as one of the key negotiators in seating the pro-Eisenhower Texas delegation to the Republican National Convention. It was mainly for that work that Eisenhower appointed him assistant to Attorney General Brownell and then named him to the United States Court of Appeals in the District of Columbia. There, and now on the Supreme Court, he has never--to the embarrassment of more sensitive members of the bar--stopped being a political hack, continuously lobbying Congress for more pay and less work for Federal judges. A Burger aide lobbied against a consumer-protection bill on the ground that it would overload the courts. Members of Congress who go against Burger's wishes need not be surprised to get a phone call someday with Burger on the other end howling insults at them. It happened to Senator Dennis DeConcini, who says that Burger's telephone technique for pushing legislation was to be "very, very irate and rude...yelled at me that I was irresponsible...just screamed at me...not only lobbied, but pressured and attempted to be intimidating."

It may have been during Nixon's Watergate crisis, however, that Burger performed his greatest service to his party and to his mentor. The full extent of Burger's role as clandestine advisor to Nixon will not be known until the White House tapes of those years are released for public study. The Burger Court has done its part to delay the release. Early in 1978, it ruled that the public might be barred access to the White House tapes used in the various Watergate trials if access was being sought "for improper purposes," such as promoting public scandal or gratifying private spite. If the tapes show that Burger and Nixon conferred about the latter's upcoming troubles in court--as some contend the tapes do, in fact, show--that would promote a great deal of public scandal of the very sort that the Burger Court would understandably prefer to avoid.

Tapes already released to the public disclose that Burger probably did give Nixon advice on at least one occasion. In the transcriptions of the April 15, 1973, tapes, Attorney General Richard Kleindienst, after boasting that "incidentally, the Chief Justice and I are very close friends," tells Nixon that Burger thought he should appoint a special prosecutor to handle the investigation.

Nixon did set up a special prosecutor's office, and though it gave him many hard moments, it also stalemated all efforts to indict Nixon either before or after his leaving the White House and spared him the discomfort of spending even one day in court. Considering the possible alternatives, Burger's advice turned out to be a lifesaver for Nixon.

On the Court, Burger on occasion has been blatantly political in his dealings with the other Justices. He reportedly tries to pull the smoke-filled-room horse-trader stuff--"I'll give you a vote on abortion if you'll give me a vote on obscenity." He has had a notable lack of success. His leadership is so weak that the Court has no focus. Of his brothers on the bench, Burger has only one true petrified soul mate: Justice William H. Rehnquist.

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Rehnquist is one of those cheerful, academically bright nuisances with which the right wing abounds. He practiced law in Phoenix before going to Washington as Kleindienst's protégé, later to become Attorney General John Mitchell's rightmost right hand. When District of Columbia police rounded up thousands of people during the May Day 1971 demonstrations and crammed them into compounds, holding them there for hours without providing lawyers or charges against them and refusing to supply them with enough water or toilets or food, Rehnquist was the spokesman for the Justice Department in defense of that action. Sometimes, he said, it just isn't possible to supply constitutional comforts.

Once on the Court, Rehnquist achieved his first notoriety among lawyers by his flippant treatment of judicial ethics. Federal law requires judges to step aside when their "impartiality might reasonably be questioned" because of a "personal bias or prejudice," or when they have a financial interest in the outcome of a judicial controversy, or when they have had a past legal connection with the case. Rehnquist sometimes ignores that law. In three cases that he had been involved in while he was employed by the Justice Department, he cast the deciding vote as a Justice of the Supreme Court--and that vote was always in favor of the Government.

Various members of the press have tried to inflate Rehnquist's image, but, in fact, he was before arriving on the Court, and he remains, a nonentity. At the time Nixon appointed Rehnquist to the Court, the President knew nothing about him and appointed him solely on the advice of Burger and Mitchell. Just three months before the appointment, the White House tapes show Nixon still referring to him in conversation in the most disparaging way:

Nixon: You remember...that group of clowns we had around there. Renchburg [sic] and that group. What's his name?

John Ehrlichman: Renchquist [sic].

Nixon: Yeah, Rehnquist.

Renchburg, or what's-his-name, could still be considered that kind of clown, glimmering on the far right like a piece of wet spunk, except that in his present position he is so damn scary. Being scary, he is the perfect companion for Burger on all of the really nasty votes. Two nasty votes do not a majority make, of course, but theirs is the driving knavery when civil liberties and privacy and free press are cut to ribbons. It was once said of Gladstone that he was a good man in the worst sense of the word. The same can be said of either Burger or Rehnquist. They are preachy, intolerant of mavericks, vengeful with sinners; they are patriotic zealots. Reading an opinion written by them is like being levitated three centuries into the past. Salem, Massachusetts, comes alive again.

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The two other Nixon appointees are not vicious but only cast-iron conservatives. (continued on page 120)Burger Court(continued from page 114) Harry A. Blackmun is, in fact, just a tiny bit pathetic. When he was judge of the Eighth U.S. Circuit Court of Appeals, he reportedly would go out to the grave of his predecessor sometimes and stand there and commune with him, searching for guidance in extremely tough cases. There is nothing wrong with asking advice from a Minnesota corpse--one is likely to get better advice from it than from most of the free-breathing residents of Washington, in fact.

The trouble is, Blackmun has almost always needed someone, dead or alive, to lean on. When he went to the Supreme Court, he was jocularly known as the "Minnesota Twin," a condescending allusion to the fact that he and Burger had been lifetime friends, that he was on the Court strictly through Burger's indulgence and that he was expected to be Burger's patsy. He arrived as a plodder; he wrote opinions so laboriously and so larded with leaden footnotes, one might have supposed he was translating into English from some esoteric language. On at least one occasion, Burger, wanting to delay a decision until the next term of the Court and knowing how slowly his Minnesota Twin wrote, assigned it to Blackmun. But Blackmun fooled him and whipped it right out in record time. Blackmun does occasionally, though not often, fool the Chief Justice, emerging briefly from beneath Burger's robe to proclaim to all the world that in his innermost daydreams he really is his own man. He does not always vote with the Chief Justice, and, in fact, he votes with increasing independence, but he was a veritable toady in his early years on the Court--the crucial years when Burger was establishing the Nixonburger Iron Mantle on the law. In his very first term, he differed from Burger on only ten percent of his votes.

The other Nixon appointee, Lewis F. Powell, Jr., is a classic study in obsolescence. He is a Virginia gentleman, incrusted with faith in a way of life that never was. To Powell's credit, he did warn Nixon that he was too old and set in his ways to be a good Justice, but Nixon was determined to have him. Fortunately for the people on death row, Powell is not mean-spirited. If Chief Justice Burger and Justices Rehnquist, Blackmun and Byron White had had their way, the Court would have upheld the death sentences of more than 600 persons in 35 states. They needed only one more vote to do it, but Powell refused to go along with the retroactive dooming of the 600, though he did support the death penalty itself.

Powell went to the Court from a tweedy Richmond corporate-law firm with plenty of utility-company clients. He is very bullish on America, with well over $1,000,000 in corporate stocks in the back of his mind as he goes about his judicial business. To what extent those holdings influence his votes is impossible to say. At least he has the decency to excuse himself from taking part in any case involving oil companies. It's doubtful, however, that that action is enough to remove him from all perils of conflict of interest.

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The Nixon appointees have voted as a bloc in more than three fourths of the criminal cases they have handled. Their unity isn't a sign of respect or loyalty to the Chief Justice. It simply shows the way they are ideologically put together: They truly believe that the Government should be allowed to push the individual around. They truly believe that good men and women--men and women who pay their bills, who pay their income taxes, who are heterosexual, who do not engage in oral sex, who copulate for reproduction rather than for fun--do not need a great deal of privacy. They honestly believe that because both The New York Times and Container Corporation of America are worth many millions of dollars and are on the stock market, there is no difference in their functions.

And yet, despite the harmony of their conservatism, they feel no fellowship. Burger has created a melancholy, confused Court that, judging from the various rumors one hears, is hardly on speaking terms with itself. Legal scholars who follow the Court are dumfounded by its fuzzy thinking and fuzzier writing. Justice Powell's opinion for the majority in the Bakke case contains this impenetrable--and typical--sentence: "If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently."

Don't try to figure out what he said; it makes no sense. Neither did the Bakke decision itself. Here was potentially the most important race case to reach the Supreme Court this decade--Allan Paul Bakke, a qualified white applicant, had been refused entry into a California medical school because 16 of the 100 first-year slots were reserved for disadvantaged students and that didn't leave room for him. Was Bakke being discriminated against unlawfully? Is it constitutionally acceptable for graduate schools to have a quota on admissions to make up for past discrimination? Here was an opportunity, given any leadership on Burger's part, for the Court to speak with a definitive voice. Instead, it fell apart: four Justices voting for quotas, four voting against and one voting that quotas were sort of OK. The ruling, a masterpiece of confusion, gave lawyers and civil rights leaders no guidance for future action.

On the issue of sexual morality, the thinking of the Burger Court is even more fragmented and hysterical. What is one to make of a Court that says city government may prohibit the showing of indoor nude films that disturb no one, but that it may not prohibit the showing of outdoor nude films on drive-in screens that cause traffic jams?

In another case, Burger offers this hypothetical situation in an effort to make the Court's decision clear: "A man and woman locked in a sexual embrace at high noon in Times Square" while "simultaneously engaged in a valid political dialog" will receive First Amendment protection for their dialog but not for their sexual activities, because "the state police power can prohibit" fornication "on a public street."

Fair enough. But what if we move our couple, still locked in sexual embrace, to a bedroom and pull down the blinds and let them continue their political dialog. Now, being hidden, are they protected by both free-speech and privacy provisions of the Constitution? Not from the Burger Court, they aren't protected. His example was misleading, for the Burger Court affirmed the conviction of two Virginia homosexuals who were doing their thing in private, not in the courthouse square, and who, for all Virginia's police knew, may have been simultaneously discussing the decline of Republicanism in Dixie.

When it comes to decisions regarding the press, the Nixonburger Court's generally chilly attitude--and Burger's personal loathing of the media--has become increasingly apparent.

This includes its decision not to decide the case involving New York Times reporter Myron Farber. The Court really betrayed the press on that one, as can be seen by reviewing an implied promise it made only seven years ago. In Branzburg vs. Hayes (1972), the Supreme Court had ruled, five to four, that reporters could not refuse to testify before a grand jury; it ruled that the First Amendment did (continued on page 230)Burger Court(continued from page 120) not shield the press from such probing. But in the same ruling, the Court suggested that states could help reporters protect their notes and sources by enacting shield laws. Twenty-six states, including New Jersey, took the suggestion and by now have passed shield laws. But when Farber was ordered to cough up his notes in the "Doctor X" murder trial and refused to do so, claiming protection under the shield law, the New Jersey Supreme Court ruled that the law did not apply to him. At that point, the United States Supreme Court--if it wanted to be consistent with its 1972 suggestion--should have spoken up on Farber's behalf. Instead, goaded by Burger no doubt, it refused to listen to his appeal. The ominous silence was accurately interpreted by Columbia law professor Benno Schmidt: "When journalists rely on the First Amendment in these cases, they'd better face the fact they aren't going to get much help from the Supreme Court."

As far as Burger was concerned, that had been obvious from the beginning of his reign.

Not long after he had been boosted onto the highest bench, Burger was confronted with the famous Pentagon-papers case. Daniel Ellsberg had leaked to The New York Times 47 volumes of classified documents that showed how the Government had deceived the American public in promoting the Vietnam war. Attorney General John Mitchell asked the Court to force the Times to stop publication. Unfortunately for Burger, the full complement of Nixon appointees had not yet reached the Supreme Court. So the majority vote went against him--the Times was permitted to continue publication of the Pentagon-papers series--and Burger was reduced to frothing anger at the press's impudence. How dare the Times use those purloined secrets! That a newspaper "long regarded as a great institution" had failed to turn over the secret documents to the Government was shocking to him--as though the Times were no different from taxi drivers, who are expected to turn over stolen property they find in the back of their hacks. "It is hardly believable," Burger gasped.

The absurdity of such a position, of course, arises from the fact that the best part of the relationship of Government and press in Washington is based on "stolen goods"--leaks. The press is a fence. Everyone knows that, and it is a good thing. The public is the beneficiary. Reporters would get precious little important news if one Government official or another didn't want to leak information to win propaganda points. The fact that many of the leaks are "secret" in the sense that some goofy bureaucrat has used his rubber stamp to mark them so makes no difference at all. Nobody takes the SECRET stamp seriously--except when it allows some press baiter like Burger to strike a posture of pious outrage.

The Pentagon-papers case was the first time Burger really came out of the closet to reveal his belief that the press should get no special privileges under the First Amendment. This philosophy would ultimately prevail, as shown by the Court's infamous 1978 decision in The Stanford Daily case. The quarrel began in 1971. In a riot on the Stanford campus, several policemen were injured. They thought the student newspaper had taken some photos of their attackers, so they wanted to look through the Daily's files. Since the newspaper itself had committed no crime and was not suspected of committing a crime, the cops should have asked the city prosecutor to issue a subpoena for the photos. That way, The Stanford Daily would have had an opportunity to go into court and argue why it thought the cops shouldn't be allowed to have the material--if it existed. But instead of taking the subpoena route, the cops got a broad search warrant--a fishing-expedition kind of search warrant--and suddenly descended on the newspaper's office and began ransacking its files. They came up empty-handed.

The Stanford Daily, feeling that it had been raped, went to court. When the case finally wound up in the Supreme Court seven years later, the Nixonburger bunch were waiting with lead pipes. They ruled, five to three, that newspapers do not have any special right to a warning of a court-approved search by police, nor do newspapers merit an opportunity to contest such a search in court before it occurs.

The Burger Court has also significantly weakened the press's protection against libel suits, but as Floyd Abrams, probably the nation's most respected libel lawyer, has said, it isn't libel law but the Court's expansion of privacy law that poses "more of a threat to the press than any other." Privacy is such a vague area that a judge could easily twist the concept of privacy in such a way as to give the court the power to decide what is news and what isn't.

The Nixonburger Court made such a decision in 1977. A local TV station had telecast, on its nightly news show, the 15-second act of Hugo Zacchini, a human cannon ball. The station made no effort to exploit commercially the brief showing of Zacchini's act; it had been presented as straight news. But Zacchini sued, charging an invasion of privacy--the right to sell one's talents as one sees fit--and this Court decided that he was right (there was, let us hasten to point out, a very sound dissent by Nixon appointee Powell). The Court thereby set a standard by which a network could be successfully sued for, say, filming Fanne Foxe's burlesque routine while Wilbur Mills cavorted in the background or for filming one of Billy Carter's stand-up comedy acts. The obvious threat that emerges from such decisions is, to quote Abrams again, that they move toward "the possible substitution of an official governmental view--of legislators or judges--for the judgment of editors as to what is 'newsworthy.' Another is that the more privacy cases that are decided against the press, the more the press will be inhibited in gathering news; as a consequence, much important news gathering may become all but impossible."

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It might be stretching a point, but a reasonable argument could be made that the Nixonburger Court's attitude toward free speech and free press is most clearly seen in its handling of the obscenity question. John Shattuck, head of the American Civil Liberties Union's Washington office, has said that obscenity is "the preeminent political test. It provides," Shattuck says, "the sharp dividing line. Except for civil libertarians and journalists, just about everyone seems to think you should be able to prosecute the purveyors of pornography." It comes down to this: If you believe--as the late Justice Hugo Black and former Justice William Douglas did--that the First Amendment means exactly what it says, that the Government "shall make no law" interfering with free speech and free press, then you will be perfectly willing to include the smuttiest smut under the "no law" guarantee. Porn--much more than sedition, which rarely raises its fiery head in America--is the ultimate litmus test of faith in the First Amendment. To the extent that one is willing to suppress smut, to that extent, one simply does not believe in the First Amendment as an absolute.

A majority of the Warren Court did not believe in the absolute application of the First Amendment to cover pornography. But neither did they believe in launching a major crusade to stamp out porn. They compromised between freedom and suppression by coming up with a criterion that was so vague as to be virtually useless. Something could be punished as obscene, they said, only if its basic theme pandered to lewd instincts and if it was totally devoid of any "redeeming social value." They also said that the standard for measuring lewd-ness must be national, not local, which meant that the people of Plains, Georgia, or Whittier, California, could not send publishers to jail who were operating out of New York or Chicago and whose products were accepted by millions of readers there and in other parts of the country.

The Warren Court's standard was sufficiently benign that, despite some rocky going in courts in the early days, magazines such as the one you now hold in your hands managed not only to thrive and grow rich but to become accepted as a solid part of Americana. The national standard for obscenity prescribed by the Warren Court kept Hugh Hefner out of jail in Peoria and PLAYBOY on the news-stands in Lubbock.

Herald Fahringer, an attorney with considerable fame among the publishers of girlie magazines, remembers his standard technique for winning back in those happier days: "One of the things we used to do: Every time you'd win a case, you'd save the magazine. You would have to save them, because they, ah, went out of circulation very quickly. So you'd go to your files and find really objectionable magazines that had been found not obscene by another respectable court, and show them to the judge. And on a national standard we were getting cases thrown out all over."

It was a situation that annoyed the hell out of Nixon and Burger and Rehnquist and the conservative lot. Clearly, the situation was just as they had been claiming all along: Liberal, permissive, raunchy, sassy, disrespectful, flesh-revealing Americans had too much freedom for their own good. So in 1973, the Burger Court cracked down.

The case used for the crackdown, Miller vs. California, arose from the conviction of a businessman who had mailed five unsolicited advertising brochures that a California jury judged to be obscene. Before coming to their conclusion, the jury had been instructed by the trial judge to evaluate the material by the moral standards of their own community--not by the moral standards of the nation. Because the judge had issued those instructions, the pornographer appealed to the U.S. Supreme Court.

He lost. And a new definition of obscenity came into being.

The Court divided on the case five to four, with Chief Justice Burger and Justices Blackmun, Powell, Rehnquist and White carrying the day for purity. No longer, as in the Warren days, would the key test of obscenity be whether or not the work was "utterly without redeeming social value"; from now on, any work being weighed must, as a whole, show "serious literary, artistic, political or scientific value." In the Warren era, the burden was on the prosecutor to prove a lack of value. In the Burger era, the burden would be on the defense attorney to prove a "serious" quality.

The Court also ruled that no longer would national standards prevail; from now on, material would be judged by the morality of states and cities and towns. Burger, who wrote the opinion for the majority, said he wanted to free normal communities from "conduct found tolerable in Las Vegas or New York City." Legislatures in Kansas and Alabama and Idaho could ban books, plays and movies whether or not they were tolerated, even admired, in the dirty big cities.

Not wanting to appear too open-ended, the Court offered two examples of the kinds of materials that legislatures could proscribe with the Court's blessings: "Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," and such stuff as "masturbation, excretory functions and lewd exhibition of the genitals."

And who was to decide what was "patently offensive" and what was "serious"? Who would decide on the relative lewd-ness of genitals? It would all be in the hands of a jury of plain home folks.

Just one year later, the Court had to tacitly concede that its Miller vs. California ruling was as stupid as all previous obscenity rulings had been. Its failure was revealed when the Georgia Supreme Court, acting within 12 days after the Nixonburger Court handed down the new community-standards edict, ruled that an Albany, Georgia, jury was justified in convicting a theater owner who had shown Carnal Knowledge, the 1971 film for which Ann-Margret had received an Oscar nomination and which got on many Ten Best lists.

When the Albany case finally wound its way up to the U.S. Supreme Court, the Justices dutifully retired to the basement of their building for a private showing of the film. That's where they view most of the movies that come for judgment. Burger, who is, or pretends to be, overwhelmingly offended by the stuff, rarely attends and prefers to base his judgments on hypothesis and legal technicalities. To him, as he has repeatedly indicated, any crucial area of the body not covered by a fig leaf is obscene. Washington reporter Nina Totenberg says that only Justice Thurgood Marshall, blessed with a Chaucerian wit, is ever heard to laugh at the lascivious huffing and puffing on the silver screen. The other Justices are reported to sit at prim attention, only occasionally making a disrespectful comment about the producers' taste. Carnal Knowledge certainly didn't measure down to most of the other films shown in that room.

When it came time to write the opinion, Justice Rehnquist had to do the embarrassing chore for everybody (the verdict was nine to zero), virtually conceding that the Court had given the sloppiest kind of guidance in Miller and angrily urging other localities not to go off half-cocked like Albany, which had no right to be so hard on Carnal Knowledge, because, said Rehnquist, it contained "no exhibition whatever of the actors' genitals, lewd or otherwise."

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Let us take our leave of the Burger Court on that note of low comedy--the spectacle of these sober, elderly judges sitting in a darkened conference room, watching for the flash of genitalia and trying then to decide whether or not that flash--if seen at all--qualified as functionally lewd; perhaps trying to decide, on other occasions, whether or not the sexual antics of three gays and a python should be considered "serious," whereas the relationship between two lesbians and a coke machine should not. The difference between the Warren Court and the Burger Court is that the former seemed to realize it was impossible to answer such questions and the latter does not. It goes on tinkering. It was tinkering again with obscenity last year, this time to instruct the lower courts not to take the sensibilities of children into consideration when they were setting the standards of the community. That, wrote Burger, would be too delicate a matter. Instead, he suggested that the juries keep a special watch for material that might excite "deviant sexual groups" such as sadomasochists and homosexuals.

The Chief Justice still had faith that a typical all-American jury would be able to recognize the stuff that appeals to perverts.

"The Nixon appointees have voted as a bloc in more than three fourths of the criminal cases."

"Burger came out of the closet to reveal his belief that the press should get no special privileges."