The Robert MacNeil Report; Supreme Court

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grants from public television stations and the corporation for public broadcasting it's big we can but amy and jim lehrer and the ark robin is in washington tonight worry is preparing for public television's coverage of queen elizabeth's dinner at the white house tomorrow night the us supreme court today close its regular turn one of the longest in court history with a final ps two its major decision on the death penalty last week the court rolled it capital punishment was alright as long as it was administered with discretion it struck down the laws in two states that contained a mandatory provision and approve those of three others the

dead today the laws of the third state oklahoma were struck down because that was an automatic punishment upon conviction for some specific crime but that their leader's vision was clearly the court's most dramatic and controversial ruling at the time and we plan to discuss its fallout and ramifications tonight but this court now fully operative as the so called burger court also came down on many other issues during his nine month term last week it was abortion the court's ruling that a woman does not have to have the permission of a spouse or a parent in order to get an abortion they're about a rapid decisions on the criminal law including one today which cuts back the use of what lawyers call the exclusionary rule whereby defendants may appeal directly to federal courts if they feel evidence has been illegally seized there've been other striking down press gag rules forbidding racial discrimination by private schools and a general category rulings on federal versus states' rights the most significant thing juan exempting state and local governments from federal minimum wage laws on all a busy port terminal wide variety of

diverse decisions to debate and ponder but they play with an eye towards biting philosophical as well as legal trends of this burger court first of course is the path is the capital punishment decision there are five hundred and eighty a person's on death row throughout the country who will be directly affected one where another by the court's decisions on capital punishment some will be spared some could be executed the crux of the court's ruling is this states and the federal government do have the power to impose death as a punishment for crime but only if the law's involves about specific guidelines for its imposition since that state laws making that mandatory for certain crimes such as murder of a law enforcement officer as many do are not unconstitutional the court specifically avoided louisiana and north carolina laws because of their mandatory provision the court vote and that one was seven two to the third state oklahoma was added today the second part

of the overall decision last week upheld the laws of war georgia and texas because the court by a five to four vote the proper guidelines were there including those directly involved in the decisions there are thirty four states plus the federal government that have death penalty statutes on the books give them to make that mandatory following conviction for some crimes the remaining fourteen do not one person who has been studying the burger court on the day today person is lyle denniston supreme court reporter for the washington star how many people now on death row could be executed could you sort out those who could be spared from those who could die and tell us why there appeared to be a robber ride around three hundred perhaps three hundred ten persons boy the closest accounting that we can know may who are on death row in states where the discretionary laws

exist and those are the laws of course was the supreme court seems to have upheld that held three looks like the other eleven will pass muster to three hundred are still who could yet so for example in florida there are sixty seven and governor ask you has said that he will sign death warrants for those sixty seven which means that assuming there are no other ways to stop the process some time during the next several months there could be sixty seven executions in florida for example what are the options for these five hundred and eighty eight condemned prisoners and particularly those three hundred who seem to be included in the law the supreme court approves well several of them were quite a number of them and i don't know what this says have not even had their first appeal and it may well be in state courts it may well be that they will find some imperfection in there trial that doesn't go to the question of whether they can be executed and maybe that they can stop their convictions from becoming final and therefore can stop the capital

punishment from being exceeded imposed in their cases first the ladder are they also have some options under the court's decision of testing laws that have not yet been validated by the supreme court decision as i said there were only three laws that have yet ruled on directly by the court that means there are eleven other statutes where you could now a tent to raise a new challenge and say your statute in the next state does not satisfy the supreme court decision there are four year statute is and now it's an immediate emergency for those defending the condemned prisoners would be in those three states whose laws have been approved by the supreme court yesterday and one other factor here that works very important way and could were conclusively and that is that they could ask the governor's to commute their son's if you say nothing in the supreme court decision disturbed in any way the power of a governor as an act of mercy to say that no one should be

executed poses a governor askew in florida said that he will go ahead with the governor as he was one of those who i think had been expected might have committed and lot so that's not apparently a very stronghold and i'm going to get to howard is professor of constitutional law at the university of virginia he was a law clerk to justice blank during the one chord years and is now completing a book on the burger court mr howard has the court ratify this matter or made it more confused and harder for state longer makers to draft appropriate state laws i think the supreme court's decisions of recent days have certainly laid down some of the outer limits of what the states might do that to extremes that it's clear that they may not embark upon one is that the kind of statutes which were on the book before nineteen seventy two when from versus georgia was decided a bit too little because they leave juries and judges for you too invoke the death penalty with no standards

whatever necessarily know that our statute clearly wanted at the other extreme we now know that they are of course that states like north carolina took after the firm in case also won't do and that is to say that once you have a finding of the commission of a certain offense the death penalty is automatic of those two extremes are just dreams which don't permit the individualized kind of judgment which i think is present recent set of decisions or law but within that narrowed area and have a left ambiguities for instance is it clear that the supreme court believes that death is an appropriate penalty only for murder and not for crimes like rape or kidnapping where the victim doesn't lie no i don't think that's clear toll it seems to me that murder is the easiest case for for capital punishment but one could conceive of aggravated circumstances sufficiently compelling that even though it did not result in the death of the victim the state might still have it within its power to put the perpetrator of that crime it's true that the court has to

pass judgments in terms of the constitutionality of a particular state laws does this ruling mean that this court has made a broader judge and mahler philosophical on whether that is a cruel and unusual punishment capital punishment cases have an extraordinary way of bringing moral and ethical philosophical issues to the surface and injury the opinions of these justices you can see that they're wrestling not only with specific facts situations and illegal in paris but there are obvious moral problems and dilemmas that they found itself confronting for example there's a debate within the various opinions within the current case is between those who think that retribution as as as opposed to you know utilitarian justification that retribution is permissible ground for punishment and the majority of the poor relative than just historic is confirms that question says yes retribution his husband has historically understood and is permissible on the other hand dissenting justices such as more sure brennan say that in a

civilized society like ours retribution simply vengeful and has not the sort of thing which show we wish don't regard her career adjustment that's right so there's a philosophical debate is not purely legal attache that you're here as france for one rockman is a criminal defense lawyer and former assistant district attorney here in new york and was the chief deputy to the aca special prosecutor after study mr ukman out on the workaday world of the criminal justice system how important is this death penalty decision compared to many others the court made in this whole area of the criminal law swearingen they seem in congress to say that anything is more important and that decision involving the death penalty but in the day to day functioning of the criminal justice system there are many other decisions by the court but it seems to me may have a far greater impact on the daily functioning of that system than the death penalty decision and the net effect of those gmo the net effect of those

decisions has been to enormously expanded powers of police prosecutors over individual rights in an example i think there are enormous expansion of the power of police to search persons persons of an abstraction and you made and place of cars homes without a search warrant that power has been expanding enormously by this court the court is permitted on use for the purposes of cross examination of a statements came from accused without that accused i think that implies oregon company called his miranda warnings the court has very recently limited the privilege against self incrimination and allowed basically private papers the bases pursuant to a search warrant the court has in effect made entrapment which is a defensive very difficult us understand especially one says if the government decision to commit a crime you are responsible for the crime and say that the net effect of the court's decision the years of drought

has been then they can do almost anything as long as well then that has some predisposition to commit the criticism that the crucial point the dominant chord in that decision set of if the government was able to prove that that that person would have in all likelihood committed that crime and alan entrapment becomes less of a less of a factor is not basically what it said well actually that sounds terrific as you and i sitting here talking about and the reality of criminal cases of people who raise a defense of entrapment very often people who have been in trouble before the people who were in contact with the police and with undercover agents of informants they're the kinds of people from it's really difficult for a jury to believe that both for the industry by the government they might not in this individual such a way and that we're talking about here is not so much whether the person really have the predisposition i regard as important is what we can say about the conduct of the garden how four wheel at the government go in terms of its owners paid for whistle stop that's not to be tolerated obviously as a as a defense lawyer in your own position where you know

exactly support what the court has done in the us but would you not agree that the image of the court for the majority of the court will is to somehow came to the conclusion that the pendulum had been swinging too far the other way toward granting too many rights to those charged with crimes of other time to adjust and obviously that is a one dollar to read these bulk of the decisions of the criminal law that you just laid out correctly correct if it certainly a legitimate interpretation in a general way what's been done along but that doesn't mean they're for this right now and i can argue that it's illegitimate interpretation yes out about the ten to know someone to those modern art another area decisions falls into a general category that will call lifestyle for a better term and this includes the abortion decision as well as one which spoke to local laws on sodomy among other tax area built well as a new york attorney who specializes in these kinds of cases and makes it her business to pay particular attention to court rulings in these areas she is general counsel for the planned parenthood his organization and a

vice chairman american civil liberties union as bilko on the surface at least it would sign that the courts has come up with a parcel of contradictions in this area a seemingly liberal ruling on abortion a seemingly conservative wong on saudi society really true i read it that they were liberal on abortion they followed the opinions that they had ended in nineteen seventy three and said that abortion was a woman's press know right decision would have acted and so they would not allow kleiman superman or consent law minors or requirements spousal consent namely a husband's veto and a variety of other restrictions were set by the court to be unconstitutional in appearances with a woman's freedom of choice with their physician to decide whether or not to have a job however i do not really read the homosexual sodomy case the way many people do i think actually all of the court held in that case was that

they were turning the lower court was dismissed the complaint and i don't wanna sound too technical i was afraid of that they cried as you know that no opinion only homosexual plays the camera from virginia who just apply here now again in my native turned the decision below right now what was the decision below the decision below lies a dismissal i'm an action brought by two people for a declaration that the virginia statute was unconstitutional and the virginia court said that they were dismissing the us because they didn't think was unconstitutional but when the supreme court of the united states affirms the lower court it does not adopt the opinion of the local adjust to firms their resolve the result in the case was that they dismissed the action for a declaration of in the liturgy and i that is so far yeah things so yes another in other words you do not interpret that decision as necessarily to uphold in the local criminal laws against sodomy on the contrary and target is

not saying anything about those are simply saying the line with a great many other decisions the court has just simon recently that they will not pass upon actions of this sort for a declaration that a statute is unconstitutional in certain circumstances that's right and i do believe that the issue of whether the behavior consenting adults and private hanley generally made the basis of criminal prosecution is still at least an open question as far as the supreme court has considered art taking of the abortion that saddam in all the other decisions that are in this particular area that we call privacy watchdogs or whatever are you able to detect any trend of this particular court and which way they maybe going one way or another well i think it's been quite clear that the court is not going to backtrack from its initial determination that the question of when and whether to have a child is a matter for a woman to decide to get an abortion with her physician

and there's no indication that they're going to do anything but a firm that right as they just did again last week the only area where i see a certain shall we say confusion is the area not action like birth control abortion but of writing or painting a bad action namely of sanity i think the court is pretty confused as to why it considers of seeing the light doesn't consider i've seen and just last week it handed down a case involving zoning ordinance of detroit that you may remember and halle they think that some free speech should be freer than other free speech and i kind of a mess just a very very quick to say that in that case they rule that it was all right for a local municipality or to restrict to a certain area where there would be porno sharpton and a general well actually they were trying to prevent a pool in la area for developing say you couldn't have adult entertainment whatever that is within a thousand feet another adult entertainment type place they

didn't want to develop this fear death of pointed jabs and then they wanted to keep a lot of these various are the generally speaking they've been consistent except in one area and i believe they've been consistent there is yet another area decisions affecting a wide range of rights and freedom like freedom of the press civil rights and states' rights and would like to discuss those remember professor howard let's take the first amendment first where has this court recently taken its own freedom of the press in my judgment the track record of the burger court on the first and then the very next one if you can that particular cases in which the first amendment clearly is weaker than it would have been five years ago at the close of the warren court obscenity cases are good illustrations level cases would be another on the other hand there are instances in which this court has actually pushed out they and that the first human member protection beyond where they found a striking example from this particular term of court was the

decision holding that simply because speeches commercial speech does not mean it's without first amendment protection and it used to be received knowledge which everyone understood as a bromide that if it was commercial speech wasn't protected while this court rejected that kind of doctor probably the most important first amendment press decision of this term was the one involving the nebraska gag order and i think one of two approach that case first on the legal little practical well because if you read the opinions it's not perfectly clear where the law stands there is no majority opinion to whichever which all the justices concurred even old man agreed to nebraska water on the facts before the court had to be struck down it looks as if given the right kind of case five justices would vote to say that prior restraint could never be uphill prior restraint by a judge of one newspaper say about that which transpires would say in open court or or confessions or whatever but only three judges went so far to say that in this particular

case so some of them are sort of waiting to say well let's say we did right jason will decide that but laying the legal interpretation of the decision aside it's certainly clear to me on reading what all the justices say thinking about the alternatives that they hold up trial judges that the likelihood of a gag order being uphill where there's any conceivable alternative is simply not very great to see you i'd know it set up all these many different decisions and in these many different areas and i'm just the general question for all of you beginning with you out is there any perceptible consistency of almost makes it possible to generalize at this point what kind of court this is well i think there is some consistency of it has to do with the supreme court's view of itself you know i think the score is suffering perhaps or at least the sensitive to the fact that it intellectually on and institutionally fifty the law is not the reforming instrument that huge

debate this court i don't think has very much confidence in itself i don't think it has very much confidence in more federal judges generally speaking and i think it does believe this has good conservative rhetoric and it may well be so conservative philosophy that the other organs of government ought not to have their chance to have we try to reform some of the social ills the court does not think of itself i mean a total majority a majority most of the time does not think of itself as the engine of reforms that were recorded and that there is a good deal of institutional insecurity i think law let me ask you this as the power beyond the swing voters and seven the seven man majority here's the part on to the moderates on the court people like potter stewart and pollen and white and the liberals and the conservatives as out there on their own when each time with those people really resolving these major cases i think as a matter of fact one concern and obviously in

some cases this could be contradicted but i think you could say that knows powell was probably the most influential member of the court for this reason the power is now in the center of the bench intellectually and i mean that intellectually and philosophically he's the rest area sam well in the center of that i think in terms of thinking of a hierarchy of knowledge of this court it's right in the middle of that they're not too terribly brilliant and they're certainly not done well but something innate in a philosophical sense the powers in the middle on those policy opinions are all routinely necessary to make the quarter results as a reporter covering the court for an afternoon newspaper and i have to go immediately with my decisions as to what the court said for my readers i almost unbearable look first at one justice policy with him in the center last fall when albert is justice stewart and the new justice john paul stevens the academy as to generally speaking out as a sport differ fundamentally with the

warren court over than other than some obvious ones we've already discussed any fundamental once again begin my answer that by saying that i think one should not overlook the enormous areas of consensus an agreement and continuity between the warren court and the burger court we who study the court and those who follow the court publicly or or profession which tend to be preoccupied with a point of contention and division but i think what you're observing is a court which for the most part has accepted the major dark travel innovations of the nineteen sixties one man one vote racial equality in the schools the application of the states of eight on procedural guarantees in the bill of rights these have not been reversed by the burger court nor are they going to be what you have happening is a court that has in effect catching its breath and the sort of saying that are right we with this far in the sixties a great group of activists and we may not be willing to overturn that law in many areas were not

going to go beyond so far could i just pick up on that with all of you the conclusion i have an impression following on from something is a lot about the court not wanting to be the engine of reform anymore i have impression that many of these decisions without actually checking about my congressman fairly well with what the harrisburg gallup polls show a majority of americans feel in many of these controversial issues now is this court deliberately actually adapted itself to the mood of the country in this borough or is there some other explanation for this is this is this supreme court by opinion poll i don't think this court has any more notion that you know i do wear the country is on these things and as a matter fact it's part of like that they have available eric a not to try to do that which would be acceptable that which would be popular i don't think the sport knows where the public is and frankly much of the

time or that i don't really care hear it i concur and that remark i recall having worked with just like in the nineteen sixties and you got a remarkable atmosphere in which the court goes about its work case by case and is insulated in in large measure from the tides of public opinion i think someone once summed up very well when they said that they've court follows the climate of the age of the not the weather of the day and i ask our guests in new york starting with you mr ms coco you have a feeling not sitting here in washington watching the court day by day that this court is charged with greatness intellectually or judicial iran is modest man avoiding ringing phrases or man incapable of ringing phrases what's your opinion oh my opinion is that the camera record is high but not as high as it has been in the past i think also they are facing much more complex plots issues at the present time because of what has gone before in other ways this court has inherited a tremendous amount of confusion

about on saturday about liable about privacy they do the best they can but they can shoot faction into a variety of different groups because they have not gone ahead with just as black and others in saying that the first amendment which says humanity and freedom of speech and that means what it says they're trying to combat areas and there are many people who feel that that cunningham is absolutely impossible to do thank you could have leverage mr rockman government and opinion is this court charged at all with great source of the court of mediocrity and in the area of criminal justice i would say that his mediocrity comes closer to being inaccurate description greatness i think it misses mr justus blackens justice douglas and asthma sound strange just as well just like the role and you or your campaign and in washington yesterday our problem will be a way to model the

point of that was a huge him from new york and jim were no no programs than one dollar to ride one night this program was produced by wnet dublin today were solely responsible for its content possible transfer of public television stations and the corporation for public broadcasting you know eighteen thousand different generations

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