Why the High Court Does What It Does

DOES the United States Supreme Court follow public opinion? Recent rulings on crime and law enforcement suggest that it does. The decision on flag burning, however, signals the opposite. William Rehnquist, chief justice of the United States, wrote last year in ``The Supreme Court: How It Was and How It Is'': ``No judge worthy of his salt would ever cast a vote in a particular case simply because he thought the majority of the public wanted him to vote that way.'' He adds, however, that ``This is quite a different thing from saying that no judge is ever influenced by the great tides of public opinion that run in a country such as ours.''

Those ``great tides'' were present when the high court struck down, not once but twice, laws making it a crime to deface the American flag.

A New York Times-CBS poll shows 83 percent of Americans believe that flag burning should be against the law.

So much emotional feeling surrounds this issue that President Bush and key members of Congress are pushing for a constitutional amendment to outlaw flag burning.

In the recent ruling striking down the federal statute and in last term's decision in validating a Texas law, the high court was was saying that the First Amendment protects free speech rights, even expression that is obnoxious to most.

What the court didn't say, but may be significant in its thinking, is that flag burning doesn't present a significant threat to the nation's security and public well-being. If it did, the court might have gone the other way.

This is not to say that the Supreme Court would suspend the Constitution to accommodate national security or protect the health of citizens.

It may be, however, that the closeness of the vote, 5 to 4, striking down the federal statute on flag burning was due, in part, to the ``great tides'' of public opinion about this issue.

It took two conservatives, Associate Justices Anthony Kennedy and Antonin Scalia, to team with the court's most liberal trio, Associate Justices Harry Blackmun, William Brennan Jr., and Thurgood Marshall, to form the majority.

If flag burning does not present a significant threat to national well-being, what does? Abortion, crime, sexual perversion?

Will the court flatly outlaw abortion, reinstate the death penalty on a broad basis, and take an absolute stance against pornography and sodomy on the basis of public good? Probably not. It will, and has, taken tougher stands on these issues based on individual cases and with some sensitivity to societal standards.

Where it appears to be reaching a majority consensus is in the area of stemming the tide of drug-related crimes. Drug use and related criminal activities have reached a level of national crisis. The courts are well aware of this and they are responding in kind.

The Supreme Court now is allowing drug testing of public employees and workers in key jobs; it is permitting police greater leeway in stopping and frisking those suspected of crime; it is bending Miranda rules to allow undercover law enforcement agents to elicit incriminating statements from jailed suspects; and it is giving police the right to question persons based on anonymous tips from an informant.

Why is this? Is this a conservative court responding to a public howling for law and order by weakening the constitutional protection of those accused of crime?

No. It is more of a rolling back of decisions made over the last three decades by liberal judges concerned with reinforcing the rights of all citizens. Given the times, they were justified in so doing. In the era just gone by, however, drugs were not seen as a major problem, much less a national crisis. Now they are.

The issue is threefold: How to deter the flow of drugs into the US, discourage youths from taking drugs, and get a handle on drug-related violent crimes. The courts cannot eliminate drug-induced crime by suspending the Constitution. What they can do is balance the need to curb drugs and their use through tough penalties with the mandate to preserve individual rights.

If drugs are allowed to run rampant in this society, more than flags will be singed.