U.S. Supreme Court surprises its critics

Press, 15 July 1980, Page 16

U.S. Supreme Court surprises its critics

From the “Economist,” London

Giving a silent nod to the current influence of the new right in American politics, the Supreme Court ended its yearly term with a narrow and ' contentious decision against free abortions ’ for poor women. But. as if to challenge simple labels, the same court also issued other important rulings that were much less disappointing to the traditional defenders of liberal causes. Chief Justice Warren Burger, no favourite among civil liberties groups, was one of a majority which held that pre trial criminal hearings must be routinely open to the press and public unless there is an “overriding interest” in keeping them closed. The court also went no further in limiting “affirmative action” to promote black Americans arid other members of racial minorities. Indeed, the justices appeared to underwrite the authority of congress to set racial quotas as a remedy for discrimination. By six to three, the court upheld a federal law setting aside 10 per cent of public building orders for minority contractors. So the Burger court continues to surprise its watchers, and possibly itself. The nine justices are as far as they have ever been, perhaps farther, from predictable agreement. For all the wishes, at least of the more conservative justices, to be less conspicuously involved in the big social and political disputes, the Burger court has yet to find an unambiguous line of retreat. In one respect, at least on the abortion decision, the court is true to an old tradition. This is following, per-

haps even anticipating a bit, the election' returns. Nothing in the nine months of the court’s latest session has so dominated its work as the growing controversy over abortion. Like prohibition more than half a century ago. abortion is becoming the litmus for rival political cultures. As there were once “wets” and “drys.” there are now “pro-life” and “prochoice” candidates. The court has been careful not to impose on what it takes to be the public mood. In 1973 it ruled that the government could not outlaw abortion, on the ground that this would interfere with a constitutionally protected right. To change that decision, a constitutional amendment would be needed. While that has remained the ultimate goal of the anti-abortionists, they have — most of them — lowered their sights to a more practical objective. This is to prohibit the use of public money for abortions for the poor. Congress has passed the Hyde amendment, which forbids the use of federal medical funds to pay for the abortions of women on Medicaid except in the narrowest circumstances of incest or rape, or where the mother’s life is endangered by the pregnancy. By five to four on Monday the Court upheld that. On its legal merits, the ruling was not an enormous surprise. The Court has kept to its 1973 line on abortion but otherwise it has not been bold. Three years ago it ruled that the government is under no obligation to pay for abortions. It has now- taken the logical next

step that the government can be positively forbidden to pay for them. Writing for the majority. Justice Potter Stewart argued that although the government could not prevent abortions it need not remove obstacles to them — notably’ poverty — that it had not itself created. The majority was presumably aware of the hardship imposed by the Hyde amendment. The number of abortions that can be performed with the help of federal money, having run at some 300,000 a year, is likely’ to fall to a couple of thousand. Somebody will have to bear t e cost of caring for the unwanted children, and, perhaps, their sick mothers. But that, in the view of the majority, is the responsibility’ of congress. To this steely doctrine, four justices wrote heated dissents. Justice Stevens said that one might as well describe the freedom of speech — protected under the first amendment — as the right to voice opinions without government interference, and then sustain a government subsidy for the medically needy except for those . who call for a change of administration. Such sarcasm does not necessarily win arguments, however, and the abortion matter is now thrown back on to the states and into congress, where the anti-abortionists are on the ascendant. The centrist block of five judges whose middle-of-the-road views ten to carry the day, year after year, has been dominant again this term. But they have been leaning towards the conservative side, and not only

on abortion. Only a few rulings this term have truly delighted liberal courtwatchers; one was the “afirmativc action” case on the final day, another the decision that removed all legal immunity for municipal governments to damage suits brought for violations of civil rights. The Court’s war with the press over access to government information and on several other matters continued. Assuring the press routine accp- to criminal

trials was a notable truce, even with the loophole of “overriding interest.” Otherwise, the claims of tire press were largely rejected. The private, although official, diary of Mr Henry Kissinger, the former Secretary of State, was kept beyond press reach, as were other sought-after public papers. Book publishers were put on notice not to deal so eagerly with former intelligence agents who turned authors. Prior clearance of

manuscripts can now be demanded of all ex-spies. Within the field of criminal law the police and the prosecutors won repeatedly during the term. To be sure, police authority to make searches of people or private houses was somewhat inhibited. The use of police guile to induce criminal confessions was also put under new strictures. But the bulk of the criminal law decisions created more authority for the notice w: h less judicial interference. On several occasions the Court found ways to allow the prosecution to use evidence in a criminal trial even though the nolice had blundered — sometimes by unconstitutional means — in getting it. . With some anxiety as well as curiosity. the justices discovered the brave new world nf sene-splicing — new forms of life invented by genetic engineers in the laboratory. The Court did nothing to stand in its way. It ruled that patent monopolies on such creations should be allowed, an inducement to investment capital to flow towards the laboratories. . As for the industrial safety. the Court allowed workers themselves to walk away from hazards on the job but restricted the government's authority to act boldly to ensure worker safety. And, when faced with the growing demand to bring trade unions to the faculties of colleges and diversities, the court balked, denying the protection of th -1 labour laws for professional organisers. If the Court during its term produced no clear stamp, it kept its composure and its secrets despite the buffeting it had to withstand from the best-selling book, “The Brethren.”