The Supreme Court of the United States, 1972-1973
| Published date | 01 March 1974 |
| Date | 01 March 1974 |
| DOI | 10.1177/106591297402700109 |
| Subject Matter | Articles |
164
THE
SUPREME
COURT
OF
THE
UNITED
STATES,
1972-1973
PAUL
C.
BARTHOLOMEW
University
of
Notre
Dame
HIS
TERM
of
the
Court
could
hardly
be
called
spectacular
- in
spite
of
the
decision
on
abortions
-
but
this
year
for
the
first
time
all
of
President
JL
Nixon’s
appointees
sat
together
for
a
full
term.
The
result
has
been
a
steady,
if
almost
imperceptible,
moderating
of
the
advanced
positions
taken
by
the
War-
ren
Court.
Chief
Justice
Burger
and
Justices
Blackmun,
Powell,
and
Rehnquist
agreed
in
more
than 100
of
the
177
cases
given
a
full
hearing.
They
were
joined
frequently
by
either
Justice
White
or
Justice
Stewart
or
both
to
form
a
five-
or
six-member
majority.
The
result
has
been
a
gradual
shifting
of
the
course
of
the
Court:
this
was
most
obvious
in
cases
involving
legislative
districting,
the
rights
of
criminal
defendants,
and
obscenity.
The
minority
Justices
-
Brennan,
Douglas
and
Marshall -
were
painfully
aware
of
what
was
happening,
and
Marshall
ob-
served
in
one
of
his
dissenting
opinions
(Colgrove
v.
Balli~a)
that
the
decision
repre-
sented
a
&dquo;gradual
process
of
judicial
erosion.&dquo;
It
was
reminiscent
of
dissents
in
the
heyday
of
the
Warren
Court.
The
statistics
for
the
term
show
that
the
Court
once
again
set
a
record
in
the
number
of
cases
disposed
of,
3,748.
This
record-setting
has
come
to
be
almost
rou-
tine
although
in
the
1970-71
term
the
total
of
3,322
was
down
a
bit
from
the
1969-
70
total
of
3,409.
In
the
1971-72
term
the
&dquo;disposed
of
category
was
up
to
3,645.
The
number
of
cases
remaining
on
the
docket
this
term
increased
slightly
from
the
previous
term’s
888
to
892.
Cases
argued
remained
constant
at
177
although
in
the
previous
term
one
case
was
pending
at
the
time.
Again
there
was
an
increase
in
the
number
of
cases
disposed
of
by
signed
opinions,
159
by
140
signed
opinions
as
compared
with
143
by
129
signed
opinions
in
the
1971-72
term
and
126
by
109
in
the
term
before
that.
Per
curiam
opinions
dropped
slightly
to
18
from
the
previous
term’s
24.
No
cases
were
set
for
reargument
this
term.
The
division
of
labor
among
the
justices
in
the
writing
of
opinions
is
always
an
interesting
statistic.
Chief
Justice
Burger
led
the
Court
in
this
category
with
19
opinions.
He
was
followed
by
Justices
White
and
Powell
with
17
each,
then
Justices
Douglas,
Stewart,
and
Rehnquist
with
16
each.
Justice
Blackmun
wrote
14
opinions,
Justice
Brennan
13,
and
Justice
Marshall
12.
The
internal
division
in
the
Court
showed
in
th;e
increase
to
a
total
of
140
dissenting
opinions
from
the
125
for
the
1971-72
term
and
the 91
of
the
term
before
that.
As
nearly
as
can
be
determined,
no
previous
term
has
produced
so
many
dissenting
opinions.
Justice
Douglas
retained
his
&dquo;dissenting
championship&dquo;
with
41,
slightly
down
from
his
46
of
the
1971-72
term.
The
other
members
of
the
Court
trailed
in
this
aspect
of
judicial
life
-
Brennan
( 26) ,
Marshall
and
Rehn-
NOTE :
Similar
reviews
of
the
work
of the
Court
have
appeared
in
the
March
1961
and
1962
and
the
subsequent
December
issues
of
the
Western
Political
Quarterly
with
one
excep-
tion :
the
March
1970
issue
contains
the
review
instead
of
the
December
1969
issue.
165
quist
(17
each),
Stewart
and
White
(12
each),
Burger
and
Powell
(6
each),
and
Blackmun
(3).
The
only
personnel
change
this
term
was
the
Librarian.
Henry
Charles
Hal-
lam,
Jr.,
retired
and
Edward
G.
Hudon
was
named
to
succeed
him.
The
Court
adjourned
on
June
25,
1973,
the
earliest
adjournment
date
since
1969.
_
CIVIL
LIBERTIES
Due
Process
Probably
the
most
controversial
single
issue
with
which
the
Court
had
to
deal
this
term
was
abortion.
Two
cases
involving
this
issue
were
decided
on
the
same
day.
In
one,
Roe
v.
Wade
(410
U.S.
113;
93
S.
Ct.
705)
Jane
Roe
(the
name
a
pseudonym),
a
single
woman
residing
in
Texas,
instituted
a
federal
class
action
against
the
District
Attorney
of
Dallas
County.
She
wished
to
secure
an
abortion
which,
under
Texas
law,
was
possible
only
on
medical
advice
with
the
purpose
of
saving
the
mother’s
life.
She
sought
a
declaratory
judgment
and
an
injunction
re-
straining
enforcement
of the
statute.
An
opinion
by
Justice
Blackmun
(vote:
7-2,
White
and
Rehnquist
dissenting)
held the
statute
void.
Two
basic
questions
were
before the
Court.
The
first
was
the
definition
in
the
context
of the
term
&dquo;person&dquo;
in
the
Fourteenth
Amendment.
As
all
agreed,
if
it
was
established
that
the
fetus
is
a
&dquo;person&dquo;
within
the
language
and
meaning
of
that
Amendment,
then
the
fetus’s
right
to
life
is
guaranteed
specifically
by
the
Fourteenth
Amendment.
After
review-
ing
the
background
of
the
matter
and
noting
that
no
case
can
be
cited
that
holds
the
fetus
to
be
a
Fourteenth
Amendment
&dquo;person,&dquo;
the
Court
decided
that
the
term
has
application
only
post-natally
and
does
not
include
the
unborn.
&dquo;We
need
not
resolve
the
difficult
question
of
when
life
begins.
When
those
trained
in
the
respective
disciplines
of
medicine,
philosophy,
and
theology
are
un-
able
to
arrive
at
any
consensus,
the
judiciary,
at
this
point
in
the
development
of
man’s
knowledge,
is
not
in
a
position
to
speculate
as
to
the
answer....
There
has
always
been
strong
support
for
the
view
that
life
does
not
begin
until
live
birth.&dquo;
( Pp.
159-60.)
The
opinion
went
on
to
note
that
&dquo;the
fetus,
at
most,
represents
only
the
potentiality
of
life....
the
unborn
have
never
been
recognized
in
the
law
as
persons
in
the
whole
sense.&dquo;
(P.
162.)
The
second
basic
question
that
concerned
the
Court
was
the
right
of
personal
privacy.
The
opinion
noted
that
the
Constitution
does
not
explicitly
mention
any
right
of
privacy
but
that
the
Court
has
long
recognized
that
such
a
right
does
exist
under
the
Constitution.
&dquo;This
right
of
privacy,
whether
it
be
founded
in
the
Four-
teenth
Amendment’s
concept
of
personal
liberty
and
restrictions
upon
state
action,
as
we
feel
it
is,
or,
as
the
District
Court
determined,
in
the
Ninth
Amendment’s
reservation of
rights
to
the
people,
is
broad
enough
to
encompass
a
woman’s
deci-
sion
whether
or
not
to
terminate
her
pregnancy.&dquo;
(P.
153.)
The
Court
noted
that
&dquo;this
right
is
not
unqualified
and
must
be
considered
against
important
state
inter-
ests
in
regulation.&dquo;
(P.
154.)
The
state
has
interests
as
to
the
protection
of
health,
medical
standards,
and
the
potentiality
of
human
life.
&dquo;These
interests
are
separate
and
distinct.
Each
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