Social issues fall to court
Washington — Somebody has to make final decisions in Washington, and more and more the buck seems to be placed in the scales of the US Supreme Court. Before ending its 1979-80 session, the high court acted in several extraordinary complex and emotional fields, all of which would probably have been handled solely by legislatures in other countries: freedom of indigent women to receive public funds for abortions; freedom of blacks and other minority business enterprises to receive favorable "affirmative action" treatment from the state; freedom of the press in admission to court trials; and the right to patent man-made forms of organic life.
The cases illustrate what some see as the growing tendency of American courts to resolve social disputes that in other countries are resolved by the political branches.
Prof. John Peter Giraudo, of the University of California at Berkeley, declares, "there is unmistakably a new mode of legal adjudication in the United States. . . . In plain language and in view of earlier discussion here, the first rule suggests that American courts must act because government in the United States is irresponsible."
This approach is indignantly rejected by law scholar Raoul Berger. At the American Bar Association meeting in Dallas, Texas, last year, he urged the courts to reject the so-called activist role, saying it had no support from the founding fathers.
The situation has oblique political overtones because of likely appointments of justices to the high court in the next four years by the next president. These could be important in a court that is often deeply divided and that has not produced any controlling theme or rationale in a number of crucial social issues in which Congress has virtually abdicated its legislative initiative.
* Medicaid abortions (Harris v. McRae, 5 to 4): the court ruled that Congress may refuse to finance most abortions under the so-called Hyde amendment to medicaid, even though a doctor holds it "medically necessary."
As Justice Potter Stewart began giving his oral summary of the court's opinion there was tense silence in the crowded chamber. He spoke in a quiet, almost diffident manner. There were strong dissents, also given orally, but the sharp words were left in written texts.
The opinion returns the issue to politics, where Rep. Henry J. Hyde (R) of Illinois now proposes a constitutional amendment to bar abortions entirely (the constitutional right to which the Supreme Court previously upheld in 1973 Roe v. Wade).
Candidate Ronald Reagan has given some support to this amendment proposal. Four years ago Representative Hyde attached an amendment to a medicaid appropriation bill banning money for medicaid abortions. The court rules this ban is constitutional. Testimony shows an abortion costs Medicaid about $150 in Illinois; cost of a childbirth is $1350. Medicaid has been funding 250,000 to 300,000 abortions yearly. Religious and so-called "right-to-life" groups hailed their victory; on the other hand Planned Parenthood quoted the Stevens dissent charging a "blatant violation of the . . . duty to govern impartially."
* Affirmative action (Fullilove v. Klutznick, 6 to 3): because of historical injustices to blacks is it constitutional for Congress to order benefits now ("affirmative action") in the allocation of a federal works program (10 percent of the spending reserved for "minority contractors")?
A majority of the court says "yes," but the majority cannot agree on the rationale of its own reasoning: three justices signed one opinion, another three another. They reached the same conclusion by two different routes. The final three disagreed with either approach.
* Press freedom (Richmond newspapers v. Virginia 7 to 1): the court ruled that the public and press have an all but absolute right to attend criminal trials. Doubt was thrown on this a year ago (Gannett v. DePasqualle), but the former opinion seems now all but over-ruled. The seven justices in the majority produced six separate opinions, none in itself commanding a majority. Justice William H. Rehnquist, often considered the most conservative, dissented altogether. Justice Lewis F. Powell Jr., did not participate.