Civil Rights, Pro-Police Rulings : High Court Dichotomy: Liberal and Conservative

The Supreme Court showed its two faces on the same day last week: liberal on matters of civil rights but conservative on crime.

A unanimous court, in a new attack on sex discrimination, said that private clubs with business ties have no right to exclude women, a ruling applauded by civil rights groups and liberals.

But, in a second ruling, the justices said that police may use as evidence a suspect’s tape-recorded conversation with his wife, even after he had invoked his right to remain silent. This decision, on a 5-4 vote, was the fourth since December in which the high court has overturned liberal readings of the so-called Miranda rule by state supreme courts.

This pattern of liberal rulings by the high court on civil rights cases and conservative rulings on criminal cases has been particularly pronounced this year, according to attorneys and legal scholars.

Having reached the halfway point in its term, the high court has issued pro-police rulings in 18 of 22 criminal cases decided so far. Meanwhile, in 9 of 10 decisions based on civil rights claims, the court has issued rulings applauded by liberals.

“There is not one court consensus, but two,” says Bruce Fein, an attorney with the conservative Heritage Foundation in Washington. Not surprisingly, he disagrees with the rights rulings but supports the criminal law decisions.

On affirmative action, the court has gone further than ever before, declaring in March that employers may give preferences to blacks or women over white males, even when no past discrimination has been shown. The justices also issued similar decisions in cases involving the rights of pregnant women, immigrants facing deportation and individuals suffering contagious diseases.

Last month, however, the high court issued two of its toughest death penalty rulings, both by identical 5-4 votes. The court said that unwitting accomplices in a crime leading to murder may be put to death and it dismissed strong statistical evidence suggesting that Georgia’s death sentencing system disproportionately condemns blacks.

John Powell of the American Civil Liberties Union says that the rulings upholding California’s pregnancy disability law and affirmative action for women “were a pleasant and surprising beginning” to the new Rehnquist court.

But the ruling that supported Georgia’s death sentencing system “was totally unacceptable. I consider it a slap at all black people for the court to say that it isn’t offended by this overwhelming evidence of (racial) discrimination,” said Powell, recently named as ACLU national legal director.

Decides Difficult Cases

Significantly, the two most recent decisions--on Rotary Club membership and taped conversations--were written by Justice Lewis F. Powell Jr., a 79-year-old moderate whose vote decides many of the court’s most difficult cases.

In criminal cases, Powell regularly joins the court’s conservative bloc, made up of Chief Justice William H. Rehnquist and Justices Byron R. White, Sandra Day O’Connor and Antonin Scalia. They have held together as a conservative core to rule that:

--Police may use drug evidence found when they mistakenly enter an apartment next to the one they were supposed to search.

--Police may deceive a suspect by asking him about a minor crime and then switching to a more serious crime after he waives his right to remain silent.

--County officials may refuse a suspected child molester’s request to see confidential accusations against him.

--Public officials who suspect an employee of wrongdoing may search his locked office or desk.

--Police may search for drugs in a barn near a farmhouse without a search warrant.

--California judges may tell jurors to avoid “mere sympathy” in deciding whether to give a murderer a death sentence.

Powell, Blackmun

American University law professor Herman Schwartz said Powell and Harry A. Blackmun, both of whom were appointed by President Richard M. Nixon, hold the key to the court’s liberalism on civil rights and conservatism on crime.

“They make up a quite firm conservative majority in criminal cases, which is Nixon’s legacy to the court,” Schwartz said of Powell and Blackmun. In the 1968 presidential campaign, Nixon called the high court “soft on crime” and promised, if elected, to put “law and order” judges on the court.

Nevertheless, the two Nixon appointees, whom Schwartz labels “progressive Republicans,” have helped create a liberal consensus in sensitive areas such as abortion and affirmative action.

Generally Guilty

As for their criminal rulings, Schwartz said, “I think the explanation is quite simple: In Miranda cases and exclusionary rule cases, you are generally dealing with guilty people. And no judge likes guilty people to go free.”

The current term has seen only one decision that went in favor of a clearly guilty suspect, in which Blackmun and Scalia, President Reagan’s new appointee to the court, joined the liberal bloc of Justices William J. Brennan Jr., Thurgood Marshall and John Paul Stevens.

The court ruled in March that police could not use evidence outside the scope of their search warrant. Phoenix police had a warrant to search an apartment for drugs, but one officer also checked under a stereo to record its identification number.

Overstepped Bounds

It was found to be stolen, but Scalia said in the court opinion that the evidence could not be used because the officers had overstepped their bounds. Powell wrote an angry dissent.

The three other criminal law cases won by the liberal side focused on court procedures, and these rulings will result in new trials for convicted criminals.

The only civil rights plaintiff who lost this year was a Missouri woman who quit her job to have a child. She wanted to return to work, could not find a job and was denied unemployment benefits under state law. In a unanimous ruling, the court said this law did not discriminate against pregnant women because the same rules were applied to all people who voluntarily quit their jobs.