Job Name:2175318 Date:15-03-05 PDF Page:2175318pbc.p1.pdf Color: Cyan Yellow Black SIGNIFICANT DECISIONS OF THE SUPREME COUR1 1975-1976 TERM SIGNIFICANT DECISIONS OF THE SUPREME COURT 1975-1976 TERM Bruce E. Fein American Enterprise Institute for Public Policy Research Washington, D.C. Distributed to the Trade by National Book Network, 15200 NBN Way, Blue Ridge Summit, PA 17214. To order call toll free 1-800-462-6420 or 1-717-794-3800. For all other inquiries please contact the AEI Press, 1150 Seventeenth Street, N.W., Washington, D.C. 20036 or call 1-800-862-5801. Bruce E. Fein is an attorney with the U.S. Department of Justice. The views of the author do not necessarily represent those of the Department of Justice. Library of Congress Cataloging in Publication Data Fein, Bruce E Significant decisions of the Supreme Court, 1975-1976 term. (AEI studies; 183) Includes indexes. 1. United States-Constitutional law-Digests. I. United States. Supreme Court. II. Title. III. Series: American Enterprise Institute for Public Policy Research. AEI studies; 183. KF4547.8.F4221977 348'.73'413 77-26165 ISBN 0-8447-3283-4 AEI studies 183 © 1977 by the American Enterprise Institute for Public Policy Research, Washington, D.C. Permission to quote from or reproduce materials in this publication is granted when due acknowledgment is made. Printed in the United States of America CONTENTS 1 OVERVIEW 1 Death Penalty Decisions 2 Abortion 6 Campaign Financing 9 Fair Trial-Free Press 11 Federalism 13 General Analysis 16 Voting Alignments 17 1975-1976 Statistics 20 Retirement of Justice William O. Douglas and Appointment of Justice John Paul Stevens 21 2 SUMMARIES OF SIGNIFICANT DECISIONS 23 Criminal Law: Powers of the Police and Prosecutors 23 Criminal Law: Rights of the Accused 47 Abortion 63 Freedom of Speech, Press, and Association 70 Federalism 97 Racial Discrimination 101 Federal Courts and Procedure 113 Government Employment 122 Church and State 129 Aliens 134 Prisons and the Rights of Prisoners 142 Government Regulation of Business and Commerce 152 Labor Law 170 Social Security 176 Taxation and Import Fees 181 Freedom of Information 186 INDEX OF CASES 189 SUBJECT INDEX 193 1 OVERVIEW The 1975-1976 term of the Supreme Court marked a significant change both in the membership of the Court and in the speed and confidence with which it has charted a diminished role for the federal judiciary and an increased role for the states in the process of governing.1 On December 19, 1975, Justice John Paul Stevens filled the vacancy caused by the retirement of Justice William O. Douglas because of ill. health. Douglas's departure left the liberal bloc of the Court with only the votes of Brennan and Marshall. It seemed to encourage the remaining seven justices in their general belief that an unelected federal judiciary should avoid imposing constitutional and, thus, nationwide shackles on other levels or branches of government in their attempts to treat intractable and complex political, economic, and social problems. After avoiding controversial decisions during the preceding term, the Court rendered a series of opinions with wide political and public reverberations. It upheld the constitutionality of the death penalty for murderers if imposed pursuant to specified procedural safeguards. In seeming to depart from its general approach to consti- 1 See, for example, Stone v. Powell, 428 U.S. 465 (1976) (reducing the scope of federal habeas corpus review in suits raising Fourth Amendment claims) ; Paul v. Davis, 424 U.S. 693 (1976) (holding an individual's interest in reputation is not a liberty interest protected by the Fourteenth Amendment) ; Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976) (holding that indigents lack standing to challenge an Internal Revenue Service ruling concerning the charitable obligations of tax-exempt hospitals) ; Rizzo v. Goode, 423 U.S. 362 (1976) (overturning an injunction requiring a police department to adopt a program for effectively dealing with complaints by civilians) ; Bishop v. Wood, 426 U.S. 341 (1976) (upholding the discharge of a policeman without a hearing) ; National League of Cities v. Usery, 426 U.S. 833 (1976) (holding federal regu­ lation of the wages and hours of state and municipal employees an unconsti­ tutional infringement of state sovereignty). 1 OVERVIEW tutional questions in other areas, the Court expanded a woman's right to an abortion by striking down restrictions requiring spousal and parental consent. The planning of several presidential candidates was shaken when the Court invalidated several provisions of the Watergate-inspired amendments to the Federal Election Campaign Act and thereby impaired the financing of their campaigns. Both broadcasters and the press won a controversial battle to stop the growing use of judicial gag orders imposed to prevent the pretrial publication of news that could be prejudicial to the accused.2 The Court erected such high constitutional standards of necessity as virtu­ ally to prohibit the issuance of gag orders against the press in any circumstances. Finally, for the first time in several decades, the Court established a restraint on the authority of Congress to encroach upon state sovereignty in legislating pursuant to the commerce clause. With regard to questions of criminal law, the Court restricted and virtually overruled liberal decisions of the Warren Court that greatly expanded the constitutional rights of suspects and prisoners.3 In weighing and balancing the interests of individuals in privacy and the interests of society in effective law enforcement in an era of increased crime, high rates of recidivism, and public clamor for better law inforcement, the Court generally leaned in favor of law enforce­ ment needs.4 Death Penalty Decisions Justice Holmes once observed: Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the 2 See Reporters Committee for Freedom of the Press, Press Censorship Newsletter no. 9 (April-May 1976), pp. 2-34. 3 Compare Mapp v. Ohio, 367 U.S. 643 (1961), with United States v. Janis, 428 U.S. 433 (1976), and Stone v. Powell, 428 U.S. 465 (1976); compare Miranda v. Arizona, 384 U.S. 436 (1966), with Michigan v. Mosley, 423 U.S. 96 (1976), United States v. Mandujano, 425 U.S. 564 (1976), and Beckwith v. United States, 425 U.S. 341 (1976); compare Fay v. Noia, 372 U.S. 391 (1963), with Estelle v. Williams, 425 U.S. 501 (1976); compare Kaufman v. United States, 394 U.S. 217 (1969), with Stone v. Powell, 428 U.S. 465 (1976). 4 See, for example, United States v. Watson, 423 U.S. 411 (1976); United States v. Martinez-Fuerte, 428 U.S. 543 (1976); South Dakota v. Opperman, 428 U.S. 364 (1976); United States v. Miller, 425 U.S. 435 (1976); Fisher v. United States, 425 U.S. 391 (1976); Andresen v. Maryland, 427 U.S. 463 (1976); Imbler v. Pachtman, 424 U.S. 409 (1976). 2 DEATH PENALTY feelings and distorts the judgment. These immediate in­ terests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. [Northern Securities Co. v. United States, 193 U.S. 197, 400-401 (1904), Holmes, J., dissenting.] The five written opinions of the Supreme Court regarding the death penalty this term involved, in the words of Justice Holmes, "great cases" and made "bad" or at least poorly reasoned law. At stake were the lives of more than 450 prisoners. The enormous increase in crime over the past fifteen years and a growing belief that deterrence, as opposed to rehabilitation, should be the primary purpose of crim­ inal punishment heightened public interest in the issue. These cir­ cumstances seem to have distorted the judgment of the Court in its decisions that virtually prohibited mandatory death penalty statutes, but upheld the death penalty if imposed pursuant to specified pro­ cedural safeguards.5 An examination of the plurality opinions by Justices Stewart, Powell, and Stevens in the leading cases of Gregg v. Georgia, 428 U.S. 153 (1976), and Woodson v. North Carolina, 428 U.S. 289 (1976), reveals the use of inconsistent and unpersuasive reasoning in striking down mandatory death penalty statutes. In Gregg, a convicted murderer sentenced to death challenged the constitutionality of the Georgia death-sentencing provisions. They provide for a bifurcated trial procedure; sentence is imposed at a separate hearing only after a guilty verdict in the initial trial stage. At the sentencing hearing, any evidence relevant to the sentencing decision, including any mitigating or aggravating circumstance, is admissible. In order to impose a death sentence, the sentencing authority must find, beyond a reasonable doubt, the existence of at least one of ten statutorily defined aggravating circumstances.6 Judicial review of all death sentences by the Georgia Supreme Court is re­ quired to ensure that the sentence is not arbitrarily imposed. The defendant argued that Georgia's death-sentencing provisions violated the prohibition of the Eighth and Fourteenth amendments against 5 The Court left open the question of whether mandatory death penalty statutes applicable to murder committed by prisoners serving life sentences violated the Eighth and Fourteenth amendments. See Woodson v. North Carolina, 428 U.S. 280, 292 n. 25 (1976). 6 One aggravating circumstance was commission of a murder for the purpose of avoiding lawful arrest. Another was commission of murder by a person with a substantial histo!"y of criminal convictions for serious assault. See Gregg v. Georgia, 428 U.S. 153, 165 n.