Right turn ahead for Supreme Court? Possible justice retirements and Meese influence could alter course
Boston — The United States Supreme Court's somewhat surprising ``moderate'' shift this term may be short-lived. Court watchers point out that:
Although conservatives, including the Reagan administration, lost key cases in the church-and-state and criminal-justice areas, many of the votes were by a razor-thin 5-to-4 majority. New cases on these issues this fall could bring a reverse in decisions.
Almost certainly, President Reagan and Attorney General Edwin Meese III will lead renewed efforts to prod the court in a conservative direction next term. Mr. Meese has already sharply criticized the justices for striking down state school-prayer laws and prohibiting public aid to parochial schools. A replacement for Solicitor General Rex Lee, who recently retired, will shortly be named. Many believe the administration will pick someone who will push the conservative agenda more strongly than Mr. Lee did.
The majority of the present court is well past retirement age. One Reagan appointment could turn many of last session's close votes around in coming cases. For instance, there have been rumors that Associate Justice Lewis F. Powell might retire, perhaps even before the start of the new term in October. Justice Powell missed hearing more than 50 cases this year because of illness. His failure to vote on several issues resulted in 4-to-4 ties on controversial cases involving Christmas displays on public land and the employment rights of homosexual teachers.
Despite the surprising number of ``centerist'' decisions this term, the court has consistently marched to the ``right'' in the criminal-justice area. Last year, longtime protections for the accused were dropped as the justices made important modifications in the exclusionary rule and Miranda warnings. The former discards evidence improperly gathered by police. The latter requires a strict reading of rights to the accused at the time of arrest.
Rulings this term expanded on an earlier decision that allows otherwise illegally obtained evidence to be used in court. That ruling allowed prosecutors to use such evidence if they could prove that authorities gathered it in ``good faith'' or took into consideration the ``public safety'' of innocent bystanders. The court this term decided that the reading of rights can be temporarily set aside for similar reasons or when a suspect is temporarily stopped for questioning.
The Justice Department's role in influencing the court should not be underestimated, observers say. Despite noted losses in the church-and-state area, the government won 80 percent of the cases in which it participated, as either a litigant or ``friend of the court,'' this past year.
Supreme Court watchers point out that justices are sensitive to public opinion in making decisions. And the White House, through Mr. Meese, is almost certain to use its vast news-media access to stress that public-opinion polls strongly support tougher criminal-justice decisions and greater government ``accommodation'' of religion. Indeed, Meese recently used the forum of the American Bar Association to make some of these points.
Overall, however, the recently ended 1984-85 Supreme Court term has been a mixed bag. Harvard law Prof. Laurence H. Tribe, a longtime court analyst, says the high tribunal has not yet been Reaganized. He points out that, despite criticisms from some civil libertarians, it has engaged this year in ``centrist preservation.''
Even staunch First Amendment advocates such as the American Civil Liberties Union (ACLU), which regularly score the court for making short shrift of individual liberties, concede that personal protections have not totally fallen by the wayside.
ACLU legal director Burt Neuborne he is relieved by what the court did not do. For instance, although they had the opportunity to do so, the justices did not further dismantle affirmative-action programs, which give minorities a leg up on getting jobs. And the court limited the power of police to shoot unarmed fleeing felons.
A key test of court ideology will come next year on the issue of abortion. The justices will review cases from Illinois and Pennsylvania dealing with a state's power to regulate abortions. In a friend-of-the-court brief filed Monday in connection with these two cases, the Reagan administration asked the Supreme Court to overturn its landmark 1973 abortion decision. This ruling affirmed a woman's constitutional right to an abortion, particularly in the early stages of pregnancy.
Some see the court's determination of the power of states to regulate abortion as perhaps the most influential individual-rights decision it will make in the 1980s.