The Once and Future Court

FOR THE THOUGHTFUT and farsighted voter, nothing could have been more chilling than the prospect of Ronald Reagan casting the next Supreme Court. Somehow though, this far-reaching concern got lost amidst competing claims about who could best tame the deficit or who would rein in the runaway arms race. Sure, the President mumbled something about how well he did with Sandra Day O'Connor and Mondale occasionally warned against the perils of Reagan court, but next to the obvious and immediate issues of budgets and bombs the Court received watcher put it. "For one of the most profound issues of the campaign, it hasn't been treated very profoundly."

And we may be paying for our myopia for years to come, because the President now has the rare opportunity to dramatically after the composition of that revered branch of government and insure that in the judicial arm at least, his brand of conservatism will live on long after his tenure in office. Laws passed by a conservative Congress may be overturned in later sessions and executive orders may be rescinded by later chiefs, but a Reagan lifetime appointee to the High Court will have say on much viral matters as abortion, school prayer and affirmative action well into the next century.

Law and Government professors are all reluctant to peer into the crystal ball and predict just how many appointment Reagan will get to make, but it doesn't take an actuarial table to realize that the ideological balance of power in the Court is at stake. Of the nine justices five-Blackmun, Brennan Burger, Marshall and Powell-are 75 years or older and of these, everyone except Burger comes form the moderate and liberal faction of the court. Should the President get to make two appointments, a reasonable estimate, the Court's teeem drift to the right could become a stampede.

The partial changing of the guard comes at a time when the Court has already made some alarming about faces regarding previous rulings. East year, in the Grove City case, the Court sided with the Reagan Administration in its reinterpretation of Title IX of the Civil Right Act. The 1983 ruling decreed that only specific departments in colleges or universities discriminating on grounds of sex should lose federal funds, not the entire instillation. In what many consider to be a stinging below to affirmative action, the Court ruled in Memphis vs. Stotts that seniority look precedence over minority hiring when that city had to lay off some of its firefighters.

Many legal experts have also began to fear for the future of the Fourth Amendment. In its last session, the Court carved out an exception to the so-called exclusionary rule which maintained that illegally obtained evidence could not be used in a criminal trail. Now, the Justices say if police officers happen to overstep the boundries of their search warrant but were neverthelss acting in good faith, the evidence may be used in trial. If any more such whittling occurs, lawyers warn, that precious article which guards against arbitrary searches and seizures many be come an artifact in legal history.

PAST EFFORTS to change the ideological stance of the Supreme Courts subtle or overt, nave yielded mixed results. Just prior to the election, Justice William Rehnornst stated that attempts to find predictable justices have more often than not, backfired. The most famous recent example of a judge coming out of the after appointment was former Chief Justice Earl Warren. An Eisenhower appointee. Warren led the most liberal Court in history as it upheld the Civil Rights Act, the Voting Rights Act and established many of the laws regarding prisoners rights that are currently in eclipse.

But according to a frequent visitor to the Supreme Court, Law School Professor Laurence H. Tribe '62. Rehnquist's argument is dubious at best. He says that "Reagan can certainly find judges who are ideologically predictable." He goes on to cite the example of the Hughes Court which contained six appointees of the conservative President Taft. In the 1930's these by then old men struck down piece after piece of New Deal legislation in what the professor describes as the "Dark Age of the Supreme Court."

That Reagan will fill vacancies with conservatives is not in doubt, out the question remains what type of conservative. He may opt for practitioners of judicial restraint who, though disapproving of many previous liberal rulings, are loathe to overturn precedent and will net instead to prevent the extension of existing laws into new areas. The tow names most often mentioned as possible candidates, U.S. court of Appeals Judges Robert Bork and Antonin Scalia, are both said to be member of the school advocating judicial restraint.

"Reagan has to keep his eye on Senate confirmations," says Associate Professor of Government Harry N. Hirsch. "He will try to appoint people like Justice O'Connor who, though conservative, would not be out on a limb and are respected in the legal profession."

But there are those who fear that the Reagan appointees may be more interested in judicial activism than restraint and will work for sweeping changes in current laws on abortion, school prayer, affirmative action and criminal rights. Says Tribe, "[Reagan] has given every reason to believe that he is sufficiently radical to put people on the court who are activist. A Reagan Court would have little respect for precedence."

Adds Law School Professor Lloyd Weinreb, "I do expect that he will be astute and successful in finding people who are very conservative, who are disinclined to use government power to regulate the economy but inclined to use it to promote various moral grounds."

REGARDLESS OF their approach to the Constitution, the new justices will deliberate on a number of cases with far-reaching ethical implications, with the biggest issue most likely centering on the divisive issue of abortion. Under the 1973 Roe vs. Wade ruling, the Supreme Court held that every woman had the right to an abortion during the first two trimesters of pregnancy, a decision that had withstood recent Administration attempts to limit the use of federal funds for abortions and the mobilization of the Right to Life forces. The arrival of a few Reagan judges who could link up with the present conservatives, however, could bode ill for the ruling.

"The most dramatic thing the Court do is overturn Roc vs. Wade," says Assistant Professor William Kristol '73 of the Kennedy School. But, Kristol cautions, all this would do is return the authority over abortion to the states, a measure which, though making the operation more difficult to obtain, would not outlaw it altogether.

The nation's eyes will also be fixed on the Court when it hears an upcoming case on the constitutionality of an Alabama law allowing schools to set aside a few moments for silence or voluntary prayer. Should the Reagan Administration's noticeable laxness in maintaining the separation of church and state infect the Court, a reversal may be in the cards for the 1962 Engels vs. Vitale decision when the Burger Court banned prayer from the schools. Just last year the Court allowed a Rhode Island town to use taxpayers money to erect a creche over the opposition of civil liberties and Jewish groups. According to Professor of Education and Social Structure Nathan Glazer, on issues like abortion and school prayer "local option will be accepted to a greater degree and the Court will leave room for local variations."

NO MATTER how earnestly Reagan may try to transform the Court, though, he will still to contend with a Senate that is unlikely to rubberstamp nominees, and future appointees are in for rigorous scrutiny and lengthy confirmation hearings. But thermore, the lower courts, which possess some degree of in dependence, are filled with Carter appointees able to safeguard many liberal laws.

Nevertheless, the fear remains that last month's election results may reverberate in the judicial arm for decades to come. To some, it would signify the long last return of the pendulum form the liberal days of the Warren Court. Others would say such a court would be an expression of the polity. But as Weinreb of the Law School puts it, "the hope in the Constitution is that the Court would restrain public opinion. A Reagan Court may facilitate it."