The court wriggles

WASHINGTON A worrisome schizophrenia seems to afflict the U.S. Supreme Court.

Some civil rights and civil liberties groups have accused the court of embarking on a dangerous and destructive journey" that endangers the constitutional rights of American citizens.

Stung by such charges, Chief Justice Warren Burger has made the rare public argument that in the last five years the court has had an excellent record of protecting individual rights.

Both views are partially right for the disturbing reason that the court is wandering all over the place these days. The irony is that the man who openly defends the court, Burger, is primarily responsible for the current judicial hodgepodge.

What kind of nonsense is it when the Supreme Court:

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Upholds a law limiting the amount a citizen may contribute to a political campaign, but says freedom of speech requires that candidates be allowed to spend as much of their own money as they choose?

• Holds that a divorcee may recover damages from Time magazine for damage to her reputation and that she need prove only negligence, not malice; but then holds that a citizen may not collect damages from Louisville, Ky., police who injured his reputation by erroneously labeling him a shoplifter?

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Expands the rights of taxpayers to use the courts to bar the collection of taxes when the Internal Revenue Service failed follow proper assessment procedures yet decides that Suffolk · County, N.Y., and other communities may prescribe for policemen the length of their hair, sideburns, mustaches, beards and goatees?

• Says federal judges have the authority to award special retroactive seniority rights to employes who previously were denied jobs. because of racial, sexual or other

Carl T. Rowan

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illegal discrimination yet, in another ruling, reduces the impact of the 1965 Voting Rights Act by agreeing that the reapportionment of New Orleans city council districts need not allow blacks an opportunity to be represented on the council in proportion to their percentage of the city's population? Or, more incredibly, when the same court says Virginia may declare private homosexual acts between consenting adults crime?

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Note that while Burger defended the court's record in protecting individual rights, he has consistently dissented in those cases. where a majority took a liberal stance on constitutional rights. For example, on the "retroactive seniority" issue he argues that it was "robbing Peter to pay Paul," or taking seniority from whites and giving it to blacks who had been victimized by discrimination.

It apparently never occurred to Burger that the whites got their extra seniority only because of discrimination, and that under the decision he deplores they will wind up with exactly the seniority they would have been entitled to had blacks not been denied jobs earlier.

Evidence of Burger's inability to hold this court to some consistent and coherent philosophy is the recent voting record of Justice Harry A. Blackmụn, who once was such an echo of Burger that the two became known as "the Minnesota Twins."

Justice Lewis F. Powell Jr. also has shown an independence that makes the Burger court something less than "the Nixon court" that millions of Americans have feared.

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