ONCE AGAIN the Rehnquist court has shown its appetite for nibbling away at the constitutional protections we once thought we had, without discarding those protections entirely.
The latest example is our newly curtailed right -- not just some suspected criminal's right, but that of every American -- to prompt release if one of us has been arrested mistakenly or without proper cause.
Don't think it can't happen to you. Police are entitled to make arrests without a warrant when, for example, they witness a crime in progress, or think they have some other reason to collar a suspect.
They can make mistakes, too. Just last fall, Dee Brown, the Boston Celtics' top draft choice, a black math and computer science major, was arrested at gunpoint because police saw him near the scene of a bank robbery in a white neighborhood, and thought he looked like the "perpetrator."
When that sort of thing happens, whether to a real criminal or to a blameless citizen like Brown, a judge must decide whether the arrest was proper.
In 1975, a far different Supreme Court from this one held in Gerstein vs. Pugh that such a "probable cause" determination must be made "promptly after arrest."
That court did not define "promptly." This week, the Rehnquist court did. "Promptly," said Justice Sandra Day O'Connor for a divided (5-4) court, means within 48 hours, not including holidays and weekends.
So if you're arrested and thrown in jail for no good reason -- and it's happened to plenty of law-abiding Americans -- you can be kept for two days and two nights in the same holding tank with drunks, prostitutes, hit men, thieves, drug addicts, drug peddlers and worse, with no official chance to protest your innocence -- which the Constitution says you shouldn't have to prove anyway.
Those 48 hours, O'Connor wrote, provide an "appropriate balance" between the state's interest in public safety and the individual's right not to suffer "prolonged detention" for no reason.
She might not be so glib about "balance" if it were she who had to spend two days and nights, without probable cause, in a typical municipal jail.
The 48-hour rule is hardly necessary to maintain public safety. A federal appeals court had thought 36 hours enough, before the Rehnquist court overruled it. Of the 50 states, 29 now manage to get a suspect before a magistrate in only 24 hours. All should be held not to some abstract "balance" but to the minimum time necessary to book the suspect and rush the case before the bench.
Owing to the Rehnquist court's expansive notion of what "promptly" means, however, it's predictable that some of those 29 states will backslide to 48 hours of unchallengeable detention.
Police are likely to welcome any relaxation of the rules that they think limits their freedom of action. It won't be criminals who'll suffer, though, because police will be able to show probable cause for the arrest of most real lawbreakers.
Speedy judicial determination whether an arrest was valid is needed, instead, to protect "those so blameless that there was not even good reason to arrest them." That's not the opinion of a bleeding-heart liberal; that's from a biting dissent by Justice Antonin Scalia, the most conservative of Chief Justice Rehnquist's colleagues. He would have limited detention without probable cause to 24 hours.
But this court, as Yale Kamisar of the University of Michigan Law School observed, "gives weight to the needs, convenience and practical problems of law enforcement." Too much weight, he might have said.
The Rehnquist court does not, however, seem willing to roll back totally the more liberal criminal-justice decisions of the Warren Court, of fading memory. This court, for instance, has chipped away at the landmark Miranda decision on the rights of the accused; but as Herman Schwartz of the American University Law School said recently, its record "reflects a willingness to preserve Miranda but not to apply it too rigorously."
Now the court has preserved the rudiments of constitutional protection against zealous or mistaken police, while refusing to apply that protection "too rigorously." But as Dee Brown could tell O'Connor, sometimes the rudiments are all too rudimentary.