The Law: The Supreme Court: End of an Era

HOWEVER hard he tries, a President can rarely mold the Supreme Court to his ideological image. Richard Nixon may be an exception. With the appointment of only two Justices, he has already helped to blunt the judicial revolution that began in 1954, when Earl Warren wrote the court's unanimous decision outlawing school segregation. That historic ruling was followed by scores of others involving race relations, voting, and capital punishment—many of them containing unprecedented guarantees of individual rights in America. Now, as the new Burger Court nears the end of its second term, it seems obvious that the Warren years of legal daring are over.

The Warren Court's major instrument for change was the 14th Amendment. Ratified after the Civil War, that amendment was primarily designed to safeguard individuals, especially blacks, against state infringement of two rights: due process and equal protection of the laws. At first, U.S. courts interpreted those rights cautiously, fearing to upset the delicate balance between the state and federal governments.

The Warren Court showed no such reservations. Ultimately, it "incorporated" most Bill of Rights safeguards in the 14th Amendment and thereby imposed them on the states. To the Warren Court, due process required the same fundamental fairness in state as in federal courts, and in case after case it found that state procedures did not measure up. As for equal protection, the court vindicated the rights not only of blacks but also of larger disadvantaged classes, from the poor to underrepresented city voters.

The Burger Court has served notice that it will not retreat from the Warren Court's sweeping school desegregation manifestoes, at least so far as Southern de jure segregation is concerned. Last term it ordered Southern public schools to desegregate "at once." This term it told lower-court judges to use all means necessary, including busing, to dismantle the South's dual school systems. In perhaps its most far-reaching decision on race, the Burger Court ruled unanimously this spring that businesses cannot use educational requirements to screen out minority job seekers arbitrarily.

Still, the new court is far more restrained than its activist predecessor. Where the Warren Court often upset state laws that ran contrary to its broadly conceived egalitarianism, the present court avoids such confrontations whenever possible. It has often been unreceptive, for instance, to suits on behalf of welfare recipients. As a result, it has down-played the 14th Amendment and even trimmed some of its forerunner's key rulings. The new approach: