Judicial Policy-Making, 1973-74

• Author: Justin J. Green
• DOI: 10.1177/106591297502800110
• Published date: 01 March 1975
• Date: 01 March 1975
• Subject Matter: Articles

167

JUDICIAL

POLICY-MAKING,

1973-74

JUSTIN

J.

GREEN

University

of

Iowa

N

AN

unusual

action

the

October

1973

term

of

the

Supreme

Court

was

I

prolonged

for

several

weeks

beyond

the

customary

closing

date.

The

jus-

-A-

tices

then

heard

arguments

on

and

decided

the

question

of

whether

the

President

could

invoke

executive

privilege

to

avoid

complying

with

a

subpoena

issued

in

conjunction

with

a

criminal

prosecution.

Although

obviously

an

im-

portant

case,

the

decision

is

not

representative

of

the

product

of

the

Court’s

deliberations

during

the

1973-74

term.

One

reason

is

that

the

decision

in

U.S.

v.

Nixon

was

unanimous

(Rehnquist

not

participating),

as

few

others

were.

Only

on

infrequent

occasions

was

the

Court

in

complete

agreement

on

the

disposition

of

a

case.

Quite

often

the

justices

divided

along

what

has

come

to

be

known

as

a

liberal-conservative

dimension.

The

remaining

members

of

the

liberal

majority

from

the

Warren

Court

(Douglas,

Marshall,

and

Brennan)

frequently

found

themselves

outvoted

by

a

coalition

composed

of

the

four

Nixon

appointees

and

the

dissenters

from

the

policies

announced

between

1961

1

and

1969.

In

fact,

this

6

to

3

division

was

the

single

most

frequent

alignment

in

cases

involving

civil

liberties.

The

Nixon

case

is

also

atypical

in

that

the

Court

reached

the

merits

of

a

politically

controversial

issue.

The

political

questions

doctrine

and

the

thresh-

old

question

of

standing

to

sue

have

often

been

invoked

in

recent

years

to

avoid

issues

fraught

with

political

overtones,

such

as

the

war

in

Southeast

Asia.

By

contrast,

in

U.S.

v.

Nixon,

Burger

wrote

a

narrow

opinion

that

grappled

with

the

questions

of

legal

policy

presented

by

the

case,

while

seeming

to

avoid

its

political

aspects.

In

more

than

one

case

decided

during

the

term,

the

Court

acted

differently

and

seized

the

opportunity

to

dispose

of

a

case

without

reach-

ing

the

merits

of

the

arguments.

The

essay

that

follows

is

written

for

the

political

scientist

who

is

interested

in

the

Supreme

Court

as

an

important

source

of

public

policy.

It

describes

a

period

of

time

during

which

the

Court

decided

140

cases

with

full

opinions,

precisely

the

same

number

as

in

the

preceding

term.

Of

these,

101

merit

close

analysis

since

they

concern

questions

of

&dquo;public

law,&dquo;

that

is,

issues

of

interest

to

political

scientists

as

well

as

to

members

of

the

bar.

It

is

impossible

in

the

space

allotted

to

discuss

each

of

these

cases.

Since

the

focus

of

the

essay

is

on

the

policy-making

aspects

of

judicial

behavior,

the

emphasis

is

placed

upon

the

63

cases

most

salient

on

this

dimension.

Most

of

the

cases

omitted

fall

into

two

categories:

questions

of

due

process

in

criminal

prosecutions

not

related

NOTE :

I

would

like

to

thank

Vernon

Van

Dyke

for

his

very

helpful

comments

on

an

earlier

-

draft

of

this

article.

1

No

cases

are

footnoted

either

for

citation

or

to

indicate

the

source

of

quotations. A

list

of

cases

referenced,

with

citations,

appears

at

the

end

of

the

article.

Cases

noted

without

dates

were

decided

during

the

1973—74

term;

all

others

have

the

year

of

decision

indicated.

168

to

the

Fourth

Amendment,

the

self-incrimination

privilege

or

the

right

to

counsel,

and

the

interpretation

of

statutes.

This

is

not

to

say

that

these

cases

are

unimportant,

but

that

their

contribution

to

an

understanding

of

the

policy

being

enacted

by

the

Burger

Court

is

somewhat

less.

I.

QUESTIONS

OF

JURISDICTION,

STANDING

AND

PROCEDURE

Perhaps

in

no

other

area

of

constitutional

law

is

the

ideological

predisposi-

tion of

the

Burger

court

more

apparent

than

in

its

definition

of

the

scope

of

the

federal

judicial

power.

Three

years

ago

Robert

Sedler

forecast

an

easing

of

restrictions

on

standing

to

sue

and

a

general

opening

of

the

judicial

system

to

&dquo;public

actions.&dquo;

He

noted

the

newly

recognized

legitimacy

of

taxpayers

suits,

the

increased

viability

of

class

actions,

and

the

general

willingness

of

the

Court

to

avoid

the

technical

question

of

standing

in

order

to

reach

the

substantive

challenge

to

governmental

action.

But

virtually

none

of

Sedler’s

predictions

have

come

to

pass,

and

the

court

has

moved

in

the

other

direction.

In

U.S.

v.

Rich-

ardson,

the

Court

confined

taxpayers

suits

to

issues

that

could

be

raised

under

Article

I,

Section

8,

the

&dquo;taxing

and

spending&dquo;

clause.

Richardson

sought

stand-

ing

as

a

taxpayer

and

as

a

citizen

to

challenge

the

provisions

of

the

Central

Intelligence

Agency

Act

that

permitted

the

financial

records

of

the

agency

to

be

classified.

His

claim

was

evaluated

according

to

the

double

nexus

test

pro-

posed

by

Chief

Justice

Warren

in

his

Flast

v.

Cohen

(1968)

opinion.

Both

parts

of

the

test,

it

was

suggested,

could

be

met

by

specific

provisions

of

the

Constitution

other

than

those

raised

in

Flast.

Richardson

claimed

standing

as

a

taxpayer

and

citizen

using

Article

I,

Section

9,

the

requirement

of

a

public

accounting

of

funds,

to

meet

the

first

nexus

required

in

Flast.

Burger

for

the

majority

saw

no

connection

between

Richardson’s

alleged

status

and

Article

I,

Section

9.

In

effect

then

he

limited

taxpayer’s

suits

to

those

that

could

be

raised

under

the

&dquo;taxing

and

spending&dquo;

nexus

explicated

in

Flast.

A

divided

minority

(three

opinions)

generally

saw

a

sufficient

relationship

between

Rich-

ardson’s

request

and

the

&dquo;affirmative

obligation&dquo;

imposed

by

Article

I,

Section

9,

to

grant

standing.

Given

the

already

narrow

interpretation

accorded

to

the

second

nexus

by

Warren,

the

effect

of

the

Richardson

decision

is

to

make

the

prospect

of

future

taxpayer

suits

very

dubious.

In

a

similar

vein

the

Court

found

no

standing

for

a

group

attacking

the

practice

of

allowing

members

of

Congress

to

hold

military

commissions

in

alleged

violation

of

Article

I,

Section

6.

Here,

in

Reservists

Committee

To

Stop

the

War

v.

Schlesinger,

the

plaintiffs

sought

standing

as

citizens

to

eliminate

the

possibility

that

legislators

would

face

inconsistent

obligations,

to

the

detri-

ment

of

the

nation.

Burger’s

opinion

rejected

the

claim

as

stating

a

&dquo;generalized

grievance&dquo;

explicitly

ruled

beyond

the

scope

of

the

federal

judicial

power

by

Flast

and

earlier

cases.

The

minority,

again

divided,

would

have

found

stand-

ing

on

the

ground

that

appellants

claimed

a

violation

of

a

specific

constitutional

provision.

2

Robert

Alan

Sedler,

"Standing,

Justiciability

and

All

That:

A

Behavioral

Analysis,"

Van-

derbilt

Law

Review

25:479

(1972).