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series of studies in the past two decades, usually referred to as "judicial impact" studies, have vitiated the traditional assumption that lower courts automatically adopt and diffuse the constitutional interpretations announced by the Supreme Court. In fact, several scholars have concluded that these judicial impact studies suggest that constitutional rules as announced by the Supreme Court, often have little influence on the behavior of judges and other officials in the legal system (Baum 1978: 208; Wasby 1973: 1086). But there is reason to doubt that the judicial impact literature presents an accurate appraisal of the overall significance of Supreme Court interpretations of the Constitution for lower courts. Extant empirical research deals primarily with a highly biased sample of controversial civil liberties decisions, especially those of the Warren Court (Baum 1978). In effect, the studies to date may have been biased because they are limited to the small portion of the court's output for which the chances for significant impact were the smallest. Moreover, most research on judicial impact has examined the response of state courts because that is where scholars expected to find noncompliance. Much less attention has been given to the impact of the Supreme Court on the lower federal courts (Gruhl 1980: 504). This suggests that one should expect to find greater impact if federal court decisions, especially those dealing with economic issues or even less highly charged civil liberties decisions (e.g., libel cases) are examined. Baum (1978) also suggests that the impact of the Supreme Court should increase as the clarity of its opinions increase and should be greatest for courts which are most directly under the authority of the Supreme Court. Moreover, since reversal is a significant sanction for lower court judges, the probability of reversal may be expected to enhance impact. While all of Baum's observations on factors which are likely to affect impact appear plausible, none has received adequate empirical examination. Impact studies have also been handicapped by excessive attention to the relatively narrow and artificially dichotomous concept of compliance. Much of the literature on the impact of the Supreme Court on lower courts has dealt

N AN unusual action the October 1973 term of the Supreme Court was prolonged for several weeks beyond the customary closing date. The justices then heard arguments on and decided the question of whether the President could invoke executive privilege to avoid complying with a subpoena issued in conjunction with a criminal prosecution. Although obviously an important case, the decision is not representative of the product of the Court's deliberations during the 1973-74 term. One reason is that the decision in U.S. v. Nixon 1 was unanimous (Rehnquist not participating), as few others were. Only on infrequent occasions was the Court in complete agreement on the disposition of a case. Quite often the justices divided along what has come to be known as a liberal-conservative dimension. The remaining members of the liberal majority from the Warren Court (Douglas, Marshall, and Brennan) frequently found themselves outvoted by a coalition composed of the four Nixon appointees and the dissenters from the policies announced between 1961 and 1969. In fact, this 6 to 3 division was the single most frequent alignment in cases involving civil liberties. The Nixon case is also atypical in that the Court reached the merits of a politically controversial issue. The political questions doctrine and the threshold question of standing to sue have often been invoked in recent years to avoid issues fraught with political overtones, such as the war in Southeast Asia. By contrast, in U.S. v. Nixon, Burger wrote a narrow opinion that grappled with the questions of legal policy presented by the case, while seeming to avoid its political aspects. In more than one case decided during the term, the Court acted differently and seized the opportunity to dispose of a case without reaching the merits of the arguments. The essay that follows is written for the political scientist who is interested in the Supreme Court as an important source of public policy. It describes a period of time during which the Court decided 140 cases with full opinions, precisely the same number as in the preceding term. Of these, 101 merit close analysis since they concern questions of "public law," that is, issues of interest to political scientists as well as to members of the bar. It is impossible in the space allotted to discuss each of these cases. Since the focus of the essay is on the policy-making aspects of judicial behavior, the emphasis is placed upon the 63 cases most salient on this dimension. Most of the cases omitted fall into two categories: questions of due process in criminal prosecutions not related

IN CONTRAST to the dramatic events of the summer of 1974, the Supreme Court returned to its position of relative public invisibility. Although there was some continuation of the activism of the late Warren Court, this more conservative court continued its retreat, and was plagued by the inactivity of Justice Douglas. Justice Douglas' stroke had a paralyzing effect on the court by removing the most liberal and most senior justice from court deliberations for significant periods of time. Here the most immediate visible impact was the delaying of the death penalty case until the next term (Fowler v. North Carolina, 422 U.S. 1039). At the end of the term, Douglas' return as an effective member remained in doubta doubt not finally resolved until November 1975 with his retirement. The output of the court was that of marginal change rather than of dramatic new policy initiatives. Reduced to the position of either protesting decisions or concurring with the controlling conservative majority, the minority liberal bloc of Douglas, Brennan, and Marshall attempted to reduce the impact of the changes by means of their written opinions. Since Chief Justice Burger and his ideological associates were able to remove the Supreme Court from many controversies by citing jurisdictional factors such as pending state litigation or failure to exhaust all appropriate administrative or judicial remedies, the federalism issue returned to prominence with the Court deferring to state prerogatives and powers (most notably in criminal prosecutions). The new order is best reflected in three traditionally publicly divisive policyoriented areas which in this term were relatively innocuous. Several reapportionment cases occurred but no new doctrinal ground was broken and in a related case involving the issue of voter eligibility in bond issue elections, the decision was based on the most minimal grounds possible (Hill v. Stone, 421 U.S. 289). In the few labor union cases decided, the major issues were the failure of Black workers to use union grievance procedures which resulted in the dismissals (Emporium Capwell Co. v. Community Org., 420 U.S. 50) and whether an employee accused of theft has the right to union representation when the accusation is made for the purposes of terminating the employee (NLRB v. Weingarten Inc., 420 U.S. 251). In all three cases, the union was upheld with no major extension of any constitutional rtlle.

IF THE HISTORIANS of the future set a "watershed" point between the "Warren Court" and the "Burger Court" the recent term of the Court undoubtedly will be a part of that dividing line. The close vote in a considerable number of cases was one indication of a transitional stage. Too, in this term the nature of a remarkable number of the cases supported the proposition that this is a public law court. Once again the Court operated without a full complement of justices for much of its term. The death of Associate Justice Hugo L. Black before the opening of the term and the retirement and later death of Associate Justice John M. Harlan left only seven justices participating in proceedings until Lewis F. Powell and William H. Rehnquist took the oath on January 7, 1972. Even then there was a period of abstention by them from voting and decisions because they had not been present for the oral arguments. As to the statistical "box score" for the term, the Court disposed of a total of 3,645 cases, a new all-time record. In the 1970-71 term it was 3,322 (as corrected in the publication of this year's statistics) and in the 1969-70 term the total was 3,409. The number of cases remaining on the docket declined slightly from the previous term's 890 to 888. Cases argued went to 176 (including one of original jurisdiction now pending) from the 151 and 144 respectively of the two previous terms. A rather dramatic increase came in the number of cases disposed of by signed opinions, 143 by 129 signed opinions compared with 126 by 109 signed opinions in the previous term. Per curiam opinions remained stable with 24 this term and 22 the previous term. Cases set for reargument this term were 5 compared with 3 in the 1970-71 term.

NE OF THE MAJOR THEMES in recent writings about the United States Supreme Court has been its treatment of civil liberties cases. During Chief Justice Vinson's tenure much comment, pro and con, was elicited by the Court's comparatively "restraintist" approach to such cases. And in the years of Chief Justice Warren, as the Court has become more "activist," the same writers have labored the same themes, but with the pros and the cons reversed. The attitudes and voting records of individual justices have been closely scanned to see whether they "measured up" to the standards of the investigator; "box scores" have been compiled purporting to show such attitudes;' particular justices have had their attackers and defenders and more than one sitting judge has doffed his judicial halo long enough to defend himself (sometimes more effectively than his admirers). The present writer has been among those who have attacked the Vinson court and defended the Warren court;2 and with the judges and other writers he has been accused of fostering the same approach to civil liberties which did the Court so much harm when it was used in the economic sphere before 1937.3 But such charges have been often denied, and the modern-day "activists" are seemingly fairly well convinced that they have built up a rationale to distinguish the two types of cases which is convincing (at least to themselves): they no longer have guilt feelings about their own inconsistency on this score.4 There is, however, another question with which the defenders of activism in civil liberties have not dealt effectively as yet. This is the question involving the Fourteenth Amendment. After all, say the critics, even if you prove that the Bill of Rights should be industriously applied by the Court, the fact remains that the first eight amendments apply only to federal action; and while the due process clause of the Fourteenth Amendment has been used to extend parts of the Bill of Rights to the states, this process is really illegitimate because the clause does not logically bear such interpretation and because this amounts to the use of the nowdiscredited substantive interpretation of the clause. So another inconsistency is charged against the libertarians. The present article is an attempt to investigate such criticism and lay the groundwork (if possible) for a defense. Put simply