Supreme Court: chance to reverse (or keep) past trends

By , Special to The Christian Science Monitor

The US Supreme Court, which has shown itself in recent years to be as liberal on First Amendment questions as it is conservative on criminal issues, opens its 1982-83 term Monday, Oct. 4. The already crowded argument schedule which faces the justices, with 125 cases through next February, contains a large number of cases in these two areas of the law, providing the court ample opportunity to continue or reverse recent trends.

Over the last dozen years, the Burger court has enlarged the First Amendment's protection of free speech, a free press, and freedom of religion in a number of different directions. The First Amendment guarantee of freedom of expression now includes a candidate's right to spend freely to win election, the right of attorneys and merchants to advertise free of undue government regulation, the right of citizens and newsmen to attend criminal trials, and the right of corporations to make their views known on issues before the voters.

An unusual pair of cases leads the list of First Amendment issues before the court this term. On Tuesday, Oct. 12, the court will hear arguments in Bob Jones University v. United States and Goldsboro Christian Schools v. United States. The schools argue that by denying them tax-exempt status, which most schools enjoy, the government has unconstitutionally penalized them for following their religious beliefs.

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Both schools discriminate against blacks, arguing that this policy is dictated by their religious beliefs. The Internal Revenue Service (IRS) based its denial of tax-favored status on this policy, which runs counter to the national policy disfavoring such discrimination.

In early 1982, however, the Reagan administration abandoned the IRS position, stating that unless Congress authorized the IRS to deny tax-exempt status for this particular reason, the IRS was not authorized to refuse it to otherwise qualified schools.

Since the Reagan administration would no longer defend the IRS policy, the justices took the unusual step in April of appointing a nongovernment lawyer to argue the IRS case.

William T. Coleman, formerly transportation secretary in the Ford cabinet and one of the nation's leading black attorneys, will argue that the justices should uphold as appropriate the IRS denial of tax-exempt status to these schools. To do otherwise, he wrote in his brief to the court, ''would be utterly inconsistent with federal law and fundamental national policy condemning racial discrimination in public and private education. . . .''

Among the other First Amendment cases which will be argued this term are two from Ohio, each involving a challenge to that state's election laws. One, Brown v. Socialist Workers '74 Campaign Committee, which will be argued Oct. 4, contests the state law requiring political parties to disclose their contributors. The other, Anderson v. Celebrezze, brought by former independent presidential candidate John B. Anderson, protests the law requiring independents to declare their presidential candidacy many months before the major parties nominate their choices.

In addition, the government is asking the justices to reinstate two federal laws that lower courts found to violate the First Amendment. One bars protests at the Supreme Court itself, the other bans the mailing of unsolicited ads for contraceptives.

Of the nearly two dozen criminal cases set for argument before the court this fall and winter, 80 percent are brought by prosecutors who are asking the justices to overturn lower court decisions in favor of defendants.

It is particularly notable that eight of these cases, one-third of the total, focus on one issue - the power of police to stop an individual or to search him or his property.

The Fourth Amendment guarantees Americans that they will not be subjected to unreasonable search or seizure. Few areas of the law have been as difficult for the justices to apply. The court's recent rulings in this area have generated more confusion than clarity; just this June the court overturned one of its own rulings on this matter, which was less than a year old.

All of the search cases are brought by prosecutors who are upset that a lower court found a particular search or arrest unconstitutional. One of the more far-reaching of these cases, Florida v. Royer, is to be argued Oct. 12.

Florida will argue that it was proper for its agents to stop and question an air traveler who fit the ''profile'' of a drug courier and who, in fact, was carrying 65 pounds of marijuana in his luggage. A state court held this stop to be an unconstitutional seizure.

The US has joined Florida in defending this practice, noting that it is the same one used in airports across the country by federal narcotics agents.

Abortion and age discrimination are two major issues of individual rights this term. Both these cases draw attention to an even more crucial question, the proper allocation of power between state and federal hands.

The case of the Equal Employment Opportunity Commission v. Wyoming began when Wyoming forced Fish and Game Division supervisor Bill Crump to retire at 55. Mr. Crump complained to the EEOC, which moved against the state, contending that Crump's involuntary early retirement violated the Age Discrimination in Employment Act, which Congress had extended in 1974 to cover employees of state and local government as well as of private companies. That law also bans mandatory retirement before age 70.

Wyoming responded by challenging as unconstitutional the application of this law to its dealing with its employees. A federal judge agreed, holding the law in violation of the little-used 10th Amendment, which reserves to states and the people all the powers that the Constitution does not delegate to the federal government or deny to the states. The EEOC appeals that ruling to the high court. The state, now backed by a long list of other states, is hoping both to win its case and to resuscitate the 10th Amendment, once an effective weapon for fending off federal intervention in matters traditionally left to the states.

Last June the court came within one vote of using this amendment to strike down another recent law; the states are hoping to win that critical fifth vote in this case - which is to be argued Oct. 5.

Five abortion cases are set for argument this term, a single one from Virginia, and two pairs each from Akron, Ohio, and Missouri.

These cases all involve requirements and restrictions placed on people seeking, and doctors performing, abortions. These include the requirement that all abortions, after a certain point in pregnancy, be performed in hospitals and that all young minors obtain parental or judicial consent before having an abortion.

The Reagan administration suggested to the court this summer that it bow out of the abortion controversy, which it set off in 1973 when it denied states the power to outlaw abortion altogether. The administration advised the justices that they should uphold these contested requirements and generally give state legislators a wide area of discretion within which to regulate abortion. Those who defend a woman's right to choose to have an abortion vigorously oppose this suggestion.

Three major business controversies will be heard this term. In the first, Sony Corporation, the maker of the Sony Betamax home videotape recorder, will ask the justices to hold that it is not liable for copyright infringement, even though these machines can be used by individual customers to tape and replay copyrighted television movies. In a case brought against Sony by Universal Studios and Walt Disney Productions, a lower court held Sony liable for damages for such infringement.

Should generic drugs - which contain the same active ingredients as already-approved prescription drugs - undergo premarket clearance by the Food and Drug Administrtion? The Reagan administration contends that they should; some of the manufactuers of generic drugs disagree in a case set for argument early in November.

The court will decide whether or not states have the power to halt construction of nuclear power plants until a federal plan is approved for disposing of nuclear waste. California passed such a law, which was soon challenged by a number of utilities whose plans it disrupted.

Backed by the Reagan administration, they ask the justices to hold that the Atomic Energy Act preempts such state regulation of nuclear power, giving the federal government complete control over the issue.

Still on the argument schedule for the new term, but likely to be dismissed before argument as moot, are the cases in which the states of Idaho and Arizona challenge the power of Congress to extend the original deadline for ratification of the Equal Rights Amendment.

After the extended deadline passed in June, the Reagan administration suggested the case was moot. Neither the states nor the National Organization for Women, the other party in the case, agree. Also at issue is the power of a state to change its mind and rescind approval of a proposed constitutional amendment.

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