Shaping the Supreme Court
PRESIDENT Carter was shortchanged on making Supreme Court appointments. He was the only full-term President in history who didn't nominate at least one justice. (By contrast, Richard Nixon named four.) Yet the composition of the present court is such that the new President may shape it for the rest of the 20 th century.
Five of the nine sitting justices will be 75 or older by election day; the prospect is that besides picking the next president, voters this fall will determine the mood and direction of the high court.
The present Supreme Court isn't politicized as it has been in times past. The Court is not just a tribunal, it is an instrument that reconciles the constitutional verities to the times we live in: It links past experience with future hopes. The court demands justices steeped in diverse philosophies, fields , and viewpoints. It is part of the machinery of continuity in American government. Some years back a group of scholars set out to rank the 100-odd men who have sat on the court: They found 12 of them ''great''; 15 ''near great''; 55 ''average''; a number ''nondescript''; and 8 ''failures.'' Listed as ''great'' were John Marshall, Joseph Story, Roger B. Taney, John M. Harlan, Oliver W. Holmes, Louis D. Brandeis, Benjamin N. Cardozo, Hugo L. Black, Felix Frankfurter, and Earl Warren.
Individual judgments differ. The high court is not merely a judicial body to weigh evidence according to inflexible rules - a kind of vending machine where you put in a coin and get out a bottle - but an interpreter of viewpoints. Some great judges have not even had previous legal experience. Felix Frankfurter regarded that as a ''zero'' factor.
It has not always been seen that way. Judicial scholar Louis M. Kohlmeier in his book ''God Save the Honorable Court'' argued that ''Nixon politicized the Supreme Court more dramatically than any president in history.'' The post-Roosevelt United States was shifting on two fronts: In world affairs the nation was shaking off isolationism; at home it was adjusting to a belief in a substantial measure of social responsibility by the government. Supreme Court conservatives ruled various Roosevelt innovations unconstitutional. Did this produce a revolution? No. Fortunately, Chief Justice Charles Evans Hughes and Associate Justice Owen J. Roberts moved to the middle and the impasse ended.
Many felt the government had gone too far in the great social upheaval. Mr. Nixon made ''law and order'' an issue in 1968 and '72; he bought election-eve radio time to promise to ''give the peace forces new muscle to deal with the criminal forces.'' He told the nation he was nominating men ''who share my conservative philosophy.'' Most observers agree that there is some important difference between the conservative and liberal approach to the evolving Constitution, but few presidents have had the audacity of Mr. Nixon in defining it.
After some of Nixon's selections for the court failed to win ratification, he introduced his two final nominees, Lewis Powell and William Rehnquist, as ''judicial conservatives,'' men, he assured the nation, who shared his desire to defend ''the peace forces.'' The two have served since Jan. 7, 1972.
The courts do have a new problem today. Various judges have pointed to this with increasing urgency. We are giving judges too much to do, they assert.
In a major speech before the American Bar Association, Chief Justice Warren E. Burger urged a shake-up in the lower-court system; the caseload is unendurable he says. So say other judges: ''There is a limit to human endurance, '' said Justice William J. Brennan Jr.
For the moment the courts' workload is the hot issue in American justice, not the enduring problem of constitutional law.