Job Name:2251939 Date:15-05-21 PDF Page:2251939pbc.p1.pdf Color: Cyan Magenta Yellow Black front fold of spine---- The American Enterprise Institute for Public Policy Research, established in 1943, is a publicly supported, nonpartisan, research and educational organization. Its purpose is to assist policy makers, scholars, businessmen, the press, and the public by providing objective analysis of national and international issues. Views expressed in the institute's publications are those of the authors and do not neces­ sarily reflect the views of the staff, advisory panels, officers, or trustees of AEI. Council of Academic Advisers Paul W. McCracken, Chairman, Edmund Ezra Day University Professor of Busi­ ness Administration, University of Michigan Robert H. Bork, Alexander M. Bickel Professor of Public Law, Yale Law School Kenneth W. Dam, Harold ,. and Marion F. Green Professor of Law, University of Chicago Law School Donald C. Hellmann, Professor of Political Science and International Studies, University of Washington D. Gale Johnson, Eliakim Hastings Moore Distinguished Service Professor of Economics and Provost, University of Chicago Robert A. Nisbet, Resident Scholar, American Enterprise Institute Herbert Stein, A. Willis Robertson Professor of Economics, University of Virginia James Q. Wilson, Henry Lee Shattuck Professor of Government, Harvard University Executive Committee Herman J. Schmidt, Chairman of the Board Richard J. Farrell William J. Baroody, Jr., President Richard B. Madden Charles T. Fisher III, Treasurer Richard D. Wood Edward Styles, Director of Publications Program Directors Periodicals RusseII Chapin, Legislative Analyses AEI Economist, Herbert Stein, Editor Robert B. Helms, Health Policy Studies AEI Foreign Policy and Defense Thomas F. Johnson, Economic Policy Studies Review, Robert J. Pranger and Donald C. Hellmann, Sidney L. Jones, Seminar Programs CD-Editors Marvin H. Kosters/James C. Miller III, Public Opinion, Seymour Martin Government Regulation Studies Upset, Ben J. Wattenberg, Co­ Editors i David R. Gergen, Jack Meyer, Special Projects (acting) Managing Editor W. S. Moore, Legal Policy Studies Regulation, Antonin Scalia and Murray L. Weidenbaum, Rudolph G. Penner, Tax Policy Studies Co-Editors; Anne Brunsdale, Howard R. Penniman/ Austin Ranney, Managing Editor Political and Social Processes William J. Baroody, Sr., Robert J. Pranger, Foreign and Defense Counsellor and Chairman, Policy Studies Development Committee SIGNIFICANT DECISIONS OF THE SUPREME COURl 1977-1978 TERM SIGNIFICANT DECISIONS OF THE SUPREME COURT, 1977-1978 TERM Bruce E. Fein American Enterprise Institute for Public Policy Research Washington, D.C. 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. 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Printed in the United States of America CONTENTS 1 OVERVIEW 1 The Future of Affirmative Action 3 Solicitation by Attorneys and the Delivery of Legal Services 7 Corporate Free Speech and Political Expenditures 12 Warrants to Search Newsrooms 13 Voting Alignments 17 1977-1978 Statistics 19 2 SUMMARIES OF SIGNIFICANT DECISIONS 20 Criminal Law: Powers of the Police and Prosecutors 20 Criminal Law: Rights of the Accused 43 Freedom of Speech, Press, and Religion 52 Civil Rights and Civil Liberties 71 Domestic Relations 102 Labor Law 107 Federal Courts and Procedure 113 Federal Regulation of Business: Antitrust Securities, Environmental, and Patent Law 122 State Taxation and Regulation of Commerce 138 INDEX OF CASES 155 SUBJECT INDEX 159 1 OVERVIEW Offering some cheer to both proponents and opponents of affirmative action programs, the Supreme Court's pioneering exploration of its constitutional parameters in Regents of the University of California v. Bakke,l characterized the moderate course charted during its 1977- 1978 term. Speaking with a muffled voice, the Court in Bakke inval­ idated a racial quota embraced by a state medical school to exclude white applicants from competing for sixteen places in the entering class. Five justices, however, endorsed the use of race as a positive factor in the design of admissions programs by institutions of higher education. Other important civil rights decisions revealed a compa­ rable disharmony in jurisprudential themes. In what would popularly be described as liberal rulings, the Court overruled one decision and cast aside the rationale of another as it enlarged the opportunities for recovery of damages against federal executive officials 2 and municipalities:l for violations of constitutional rights. In addition, residential customers of municipal utilities were granted due process protection before any termination of service for nonpayment. 4 Female employees garnered protection against dis­ crimination founded on childbearing under the Civil Rights Act of 1964 5 and won a reprieve from paying higher pension contributions than their male counterparts to offset their longer life expectancy. 6 The Court also removed a financial barrier to the vindication of con- '438 U.S. 265 (1978). 2 Butz v. Economou, 438 U.S. 478 (1978). 3 Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). 'Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1 (1978). 5 Nashville Gas Co. v. Satty, 434 U.S. 136 (1977). 6 City of Los Angeles, Department of Water and Power v. Manhart, 435 U.S. 702 (1978). 1 OVERVIEW stitutional rights in affirming an award of attorney's fees against a state under the Civil Rights Attorney's Fee Awards Act of 1976. 7 On the other hand, the Court offered judicial officers and pros­ ecutors an impenetrable shield against damages for constitutional infractions committed in the process of adjudication 8 and circum­ scribed the damages recoverable against executive and administrative officials who enjoy only a qualified immunity from suits founded on constitutional torts. 9 It embraced a crabbed construction of the due process clause in rejecting procedural due process challenges to the dismissal of a medical school student for academic reasons 10 and to the private sale of stored goods by a warehouseman to enforce a lien for nonpayment. 11 And the Court retreated from a series of equal protection rulings 12 that had shielded aliens from a host of discrim­ inatory state statutes in sustaining a law that excluded aliens from a state's police force. 13 The Court's First Amendment rulings carried important impli­ cations for the involvement of corporations in political campaigns, the delivery of legal services, and the ability of the press to uncover and to publicize the misdeeds of government. In striking down a Massachusetts statute that prohibited expenditures by corporations for the purpose of influencing a referendum on individual income taxes,14 the Court placed under a constitutional cloud several state and federal statutes that forbid expenditures by corporations to in­ fluence elections for public office. In offering substantial First Amend­ ment shelter to solicitation of clients by attorneys,15 the Court may have unleashed forces that could revolutionize the delivery of legal services to the average consumer and drive down costs. And the Court's refusal to concede that the media constitutionally enjoy a greater right of access to government information 16 and greater shelter from government investigators 17 than is available to other persons 'Hutto v. Finney, 437 U.S. 678 (1978). 8 Butz v. Economou, 438 U.S. 478 (1978); Stump v. Sparkman, 435 U.S. 349 (1978). 'Carey v. Piphus, 435 U.S. 247 (1978); Procunier v. Navarette, 434 U.S. 555 (1978); Robertson v. Wegmann, 436 U.S. 584 (1978). 10 Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978). 11 Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978). 12 See Nyquist v. Maude!, 432 U.s. 1 (1977); In re Griffiths, 413 U.S. 717 (1973); Sugarman v. Dougall, 413 U.s. 634 (1973); Graham v. Richardson, 403 U.s. 365 (1971). 13 Foley v. Connelie, 435 U.S. 291 (1978). 14 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). 15 In re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Association, 436 U.s. 447 (1978). 16 Houchins v. KQED, Inc., 438 U.s. 1 (1978); Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). 17 Zurcher v. Stanford Daily, 436 U.S. 547 (1978). 2 THE FUTURE OF AFFIRMATIVE ACTION could weaken the institutional role of the press as a bulwark against official misfeasance. A procession of criminal law decisions during the 1977-1978 term echoed a familiar theme of the Burger Court: hostility toward the exclusion of reliable evidence at trial as a sanction for constitutional 18 or statutory violations. 19 The Court also bolstered investigatory and prosecutorial powers in holding that suspected traffic offenders may be routinely ordered out of their vehicles, 20 that telephone companies may be required to assist in the installation of a court-authorized pen register device, 21 and that prosecutors may reindict an accused on more serious charges if he declines to plead guilty to the offenses charged in the initial indictment.