Reagan and high court: political winds influence nomination, recent decisions; 1980-81 rulings leave activism to Congress
Washington — President Reagan's choice of a conservative new justice may not be needed to change the direction of the US Supreme Court. The change already has come. Mr. Reagan wants justices to interpret laws, not create them. He is calling for a humble court, one that will give way to states and Congress.
The justices have shown in the just-ended session that they already feel the shift in the political winds. No longer the activists who ordered schools to desegregate and legalized abortion, the justices this term appear to have placed a mat in front of their marble-halled courthouse that reads: "The buck does notm stop her."
"The overriding theme is deference to Congress," says constitutional scholar A. E. Dick Howard of the University of Virginia Law School. The court has been setting that course for the past few years, he says, but it "seems to me it's been even stronger this term."
Although the high court carried the "deference" theme into several areas, the most notable was national security. The court's potentially most explosive case of the year, the challenge to the all-male draft registration law, produced a ruling that gives Congress wide latitude in military matters. The court made it clear that in raising an army and navy, the Constitution bestows on Congress special powers that supersede the concept of equal treatment for men and women.The outcome on draft registration was almost universally expected. A decision to overrule the all- male draft in the face of great congressional opposition would have put the court precariously far out on a judicial activist limb.
Equally expected was the decision to uphold former President Carter's financial settlement with Iran to release the American hostages. Throughout US history, the Supreme Court has given the chief executive broad power in matters of diplomacy.
But what was not predicted was the high court's broad endorsement of the executive power to strip a US citizen of his passport. In the case, Philip Agee , a former CIA official who was exposing undercover CIA agents, lost his passport on the grounds that he was endangering "national security and foreign policy."
The Agee ruling sent chills down the backs of civil libertarians. It also displeased Justice William J. Brennan Jr., one of the court's two most consistent liberals. Justice Brennan pointed out in his dissent that such power could even extend to limiting travel of news reporters in El Salvador.
One area where the high court this term moved against the prevailing winds was in safety and environmental regulations. Even as President Reagan set about deregulating US industry, the Supreme Court staunchly backed the federal power to protect textile workers from cotton dust not matter the cost. It also upheld rules that regulate strip mining.
Other important developments in the court's 1980-81 term include:
* Sex discrimination cases: Supporters of women's rights see one big victory and three sound defeats from the term. The court opened an important door for equal pay suits. In a publicized "comparable worth" case, the court allowed a suit even though the women, who were jail matrons, had somewhat different jobs from the men, who were prison guards.
But overall, feminist lawyers are gloomy because, as they see it, the Supreme Court refused to grant women the same equal protection rights that it has given minorities. "This court told us it's not there for us," says Judith Lichtman, director of the Women's Legal Defense Fund.
Ms. Lichtman calls the draft ruling the 'worst."
* Speech and expression: In this area, the court went in several directions.It came down hard against expression when it involved exposing CIA agents abroad, but at home, it forbade a small town in New Jersey to pass a law banning nude dancing. In a complex ruling, the court also struck down as too broad a local ban on noncommercial billboards. But it upheld a state fair's rule that confined religious solicitation to a booth.
* Religion: In a close (5 to 4) ruling, the high court threw out a Kentucky law providing for posting a copy of the Ten Commandments in all public classrooms. In another case, the justices gave a boost to religious freedom by requiring Indiana to pay unemployment benefits to a worker who quit his job manufacturing weapons because of religious conviction.
* Racial equality: The court rejected the argument that blocking off a street between white and black neighborhoods was unconstitutional. The court indicated that without proving intentional discrimination, the black community had no case.
The court saw a number of cases involving police or fire department "affirmative action" plans for hiring minorities and women. But it refused to hear any of them, leaving those plans standing.
* Family: The court agreed to hear the plea of a father who wanted to block a stepfather from adopting his children. The justices also voted to hear a case involving parents who said they were unfairly denied all rights to their children and a case involving a childsnatching dispute. However, for various reasons, the court ended up dropping each of those cases without ruling.
In the one important case, the court ruled that poor parents are not entitled to free attorneys when states try to remove their parential rights.
The court bowed to parental authority by upholding a Utah statute that requires doctors to inform parents, if possible, before performing an abortion on a minor. That ruling is seen as evidence of backtracking on the court's landmark 1973 decision affirming a woman's right to have an abortion.
* Criminal procedure and prisons: The most important ruling prohibited the use of surprise psychiatric testimony in a sentencing hearing. The ruling overturned the convictions of eight death row prisoners.
In search cases, the high court sent mixed signals. In one case, police were forbidden to open a wrapped package found in the back end of a car. But in another, police wer allowed to examine a coat found in the passenger compartment of a car after an arresting officer smelled marijuana smoke.
The court narrowed the guarantee that a person will be warned of his right to remain silent after arrest. Over spirited dissent, the court ruled that police do not have to follow a rigid formula when issuing the so-called "Miranda" warnings.
The court also ruled that housing two prison inmates in a cell built for one does not constitute cruel and unusual punishment.