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Supreme Court Decision Indicates Conservative Tilt


A SUPREME Court decision handed down this week may indicate the tribunal's new direction under the domination of a larger conservative majority. In a 5-to-4 vote, the court ruled on Monday that persons arrested by police without a warrant can be held for up to 48 hours before a court rules on the validity of the arrest.

In issuing the decision, Riverside County v. McLaughlin, the court weighed the Fourth Amendment protection against unreasonable search and seizure with the ability of an overburdened criminal-justice system to deal quickly with warrantless arrests. The court, as it has in other cases this session, came down on the side of the police.

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``In our view, the Fourth Amendment permits a reasonable postponement of a probable cause determination while the police cope with the everyday problems of processing suspects through an overly burdened criminal justice system,'' the court held.

This was the third case this term in which the court sided with the police over the defendant. In Arizona v. Fulminante, the court ruled 5 to 4 that the use of a coerced confession in a trial does not automatically void a conviction if the guilty verdict can be sustained by other independent evidence at the trial. In California v. Hodari, a 7-to-2 majority held that evidence thrown away by a fleeing suspect is not protected by the Fourth Amendment.

While the majorities varied in the three cases, new Justice David Souter voted with the majority in all three. And in the two close decisions, most observers believe the court would have ruled differently were retired Justice William Brennan Jr., a firm liberal, still on the bench.

While it is still too early to determine Justice Souter's views on many issues, his actions thus far support the assumption that he will lean in a clearly conservative direction.

Before Justice Brennan's retirement, the court generally divided into three liberals (Brennan, Harry Blackmun, and Thurgood Marshall), five conservatives (Chief Justice William Rehnquist, Byron White, Sandra Day O'Connor, Anthony Kennedy, and Antonin Scalia) and one moderate, John Paul Stevens, who tends to vote with the liberals. On several close criminal-justice rulings, however, the liberals were able to find different conservatives to side with them for a 5-to-4 majority.

With Souter's presence, that has changed. Brennan's absence and Souter's presence makes a crucial difference in favor of the conservatives. Instead of the liberals starting out with four votes, they now have only three. ``The number of times the liberals will be able to get a majority with White or O'Connor will be that many fewer,'' says Peter Edelman, associate dean at the Georgetown University Law School.

This is the first time the conservatives have really controlled the court since the late 1930s. Between 1933 and 1969, Democrats controlled the White House - and therefore Supreme Court appointments - all but eight years out of 36. During this time, they succeeded in creating the liberal court that made so many landmark rulings in the areas of civil rights, privacy, and the rights of criminal defendants.

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Since 1969, however, Republicans have been in the White House for 18 of 22 years. The current court includes one justice appointed by John Kennedy (White); one by Lyndon Johnson (Marshall); two by Richard Nixon (Blackmun and Rehnquist); one by Gerald Ford (Stevens); three by Ronald Reagan (O'Connor, Scalia, and Kennedy); and one by President Bush (Souter).

More retirements may be in the offing. Two justices, Thurgood Marshall and Harry Blackmun, are in their 80s.

``It took the conservatives 25 years to win the court back,'' Professor Edelman says. ``If Bush gets eight or nine appointments between himself and Reagan, it will take another 25 years for the liberals to retake it.''

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