Judicial Policy-Making, 1973-74

Abstract

N AN unusual action the October 1973 term of the Supreme Court was prolonged for several weeks beyond the customary closing date. The justices 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 important 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 1 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 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 threshold 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 reaching 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 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 public law, 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