Washington — The Reagan administration is piling up a series of emotional issues for likely decision by the US Supreme Court, whose point of view could be sharply altered by Reagan appointees in the next four years.
The average age of a Supreme Court justice today is 68, compared with 67 in 1932, when liberal critics denounced that court's "nine old men" for invalidating New Deal legislation.
President Reagan has a double chance of naming justices and affecting constitutional law because President Carter made no Supreme Court appointments during his four years in office. This compares with four appointments for Truman, five for Eisenhower, two for Kennedy, two for Johnson, four for Nixon, and one for Ford. A president averages about two appointees per term.
The court did not become a specific political issue in the 1980 presidential campaign, as it did when Richard Nixon ran in 1968. However, the 1980 GOP platform declared, referring to the abortion issue: "We protest the Supreme Court's intrusion into the family structure through its denial of the parent's obligation and right to guide their minor children."
The platform supported a constitutional amendment "to restore protection of the right to life for unborn children" and also backed "congressional efforts to restrict the use of taxpayers' dollars for abortion."
Richard Nixon made "law and order" and the Supreme Court the major theme of his 1968 presidential campaign. Three days before election, he promised to name "strict constructionists" to the court. Mr. Nixon spoke of the high crime rate, and blamed it on court "laxity."
The four Nixon appointees on the present court are Chief Justice Warren E. Burger and Associate Justice Harry A. Blackmun, Lewis F. Powell Jr., and William H. Rehnquist. They have not proved cohesive, however, in their philosophy and have frequently gone separate ways. (The Senate rejected two Nixon appointees, and a third withdrew voluntarily.)
Almost certainly Mr. Reagan will consider a woman if he gets the opportunity to nominate a Supreme Court member. No woman has ever been appointed. The minute a vacancy occurs, a discussion begins in law schools, courts, and the press as to the basis on which an appointment should be made.
One factor is race, which arose in President Johnson's selection of Thurgood Marshall in 1967 -- the first black. Only once was there a groundswell for a particular appointee. It came in 1932, when Benjamin Cardozo was selected to fill Oliver Wendell Holmes's seat.
Some argue that nobody shouold be appointed who has not been screened by the American Bar Association, but it is recalled that the appointment of Louis D. Brandeis was opposed by seven former ABA presidents when President Wilson named him in 1916. Some of the most distinguished justices never had previous judicial experience, as, for example, Felix Frankfurter.
George Washington started from a clean slate, selecting an entire court; Lincoln chose five; Taft chose six; and Franklin Roosevelt selected eight. FDR inherited a laissez faire court, and none of the nine quit during his first term. This brought the average age to 71 by 1936, when the court had already come to be known as the "nine old men." Five members of the present court ae over 70.
Constitutional litigation follows any major political change of direction in Washington, as it did after the Roosevelt New Deal was introduced. Mr. Reagan's aggressive attack on government "interference," federal overregulation, and individual rights vs. government rights is likely to lead to a harvest of constitutional cases.
Various school issues seem likely to reach the court in one form or another during the Reagan administration.
In school busing, for example, Associate Justice Rehnquist just recently refused to order mandatory busing to continue in Los Angeles. He is the Supreme Court justice who handles emergency appeals from much of the Southwest.
A lower court had ordered mandatory busing to end, and the National Association for the Advancement of Colored People asked Justice Rehnquist to throw out the lower appeals court ruling.
School prayer is another hot issue. The GOP platform supported "initiatives in the Congress to restore the right of individuals to participate in voluntary nondenominational prayer in schools and other public facilities."
And federal aid for private-parochial schools seems headed again for the courts. Reagan favors tuition tax credits and the GOP platform promised: "Next year, a Republican White House will assist, not sabotage, congressional efforts to enact tuition tax relief into law."
Justices function in three roles, following the major functions that they fulfill: as a member of a court of law; as one who must consider important social disputes; and finally, as one who acts in a tribunal to which people look for help when their aspirations have been submerged.