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Burger court: activism mixed with restraint. Court under Nixon appointee defied facile characterization

The work of the Burger court will be finished in the next couple of days, but its impact will doubtless linger into the next century. Warren E. Burger, for 17 years the nation's top jurist, will retire as chief justice of the United States after the high court delivers its final ruling of the current term tomorrow.

Remaining are but a handful of issues, most important of them the constitutionality of a portion of the Gramm-Rudman balanced-budget law.

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But regardless of the outcome of the Gramm-Rudman case, the stamp of the Burger court is already set -- and it is somewhat paradoxical.

This tribunal has been one of judicial activism, and yet also one of judicial restraint. It has in some cases pruned back the social-justice decisions of its predecessor, the clearly activist and politically liberal Warren court. But it has also blazed new paths, particularly for women and the news media, occasionally for blacks and other racial minorities.

David M. O'Brien, in a just-published book on the court, says that the complex and often emotion-clad issues of the day have transformed the nation's top judicial body from what Alexander Hamilton called the ``least dangerous'' branch of government to what former Justice Oliver Wendell Holmes saw as the ``storm centre'' of political controversy.

Mr. O'Brien, a professor at the University of Virginia's Woodrow Wilson Department of Government and Foreign Affairs, points out that although the court's influence is profound, it is often ``subtle'' and ``indirect.'' And its policymaking is inextricably bound up with that of other political institutions, he says.

Although the Burger court has often been perceived as leaning to the right of center, it has actually been the quartet of moderates -- Associate Justices Harry A. Blackmun, Lewis F. Powell Jr., John Paul Stevens, and Byron R. White -- who have largely swayed its course. Associate Justices William J. Brennan Jr. and Thurgood Marshall have usually held the civil-libertarian reins on the left. Mr. Burger and his nominated successor as chief justice, William H. Rehnquist, have tended to follow the conservative course. And Sandra Day O'Connor -- who just five years ago made history when President Reagan nominated her as the court's first woman justice -- has been branded with a conservative stamp but so far has voted in an independent fashion.

Of late, the Burger-led court has sent down a spate of split decisions. Recently 5-to-4 majorities have upheld the right to an abortion first decreed in 1973; the precedence of parental authority over government interference in decisions regarding care of infants with severe birth defects; and state laws that outlaw certain kinds of homosexual as well as heterosexual behavior.

On balance, the court under Burger has opted for:

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State jurisdiction over federal in matters that do not patently violate individual rights. For instance, the court just this past week allowed to stand a Puerto Rican law (the commonwealth is subject to US jurisdiction) barring gambling advertisements aimed at domestic audiences. But earlier it struck down a Pennsylvania abortion law as too restrictive and violating individual privacy rights.

Greater leeway for police in interrogation and arrest situations. Two terms ago, the justices significantly modified the 70-year-old ``exclusionary rule'' that disallows criminal evidence or testimony obtained in a constitutionally tainted manner. The court, however, has continued staunchly to protect the rights of prisoners and the accused in situations where excessive force has been used by police or racial prejudice has been evident in the process.

Rights of the press to gain access to information, particularly in the courtroom setting, and to be protected from frivolous libel claims. Under the leadership of Burger, the court has carved out new media (and public) rights to attend criminal trials and pretrial hearings and to observe jury selection. And despite some efforts to weaken the so-called Sullivan absence-of-malice standard, the court continued to place the main burden of proof for libel on the plaintiff.

Separation of church and state. Like its predecessors, the Burger court held that prayer in public schools is a violation of the Constitution's ``establishment clause.'' It struck down government aid to private and parochial schools on the same basis. But it has allowed Christmas displays in public areas. At times the court subordinated ``free exercise'' of religion to military authority or governmental need.

Next October, subject to Senate confirmation, the Supreme Court will convene with Mr. Rehnquist as the nation's 16th chief justice and conservative scholar Antonin Scalia as the newest member of the brethren. Some 150 new cases, each involving difficult and often emotional legal issues, will await the nine justices as the court begins a new era.

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