The Reagan administration's attempts to alter federal law through challenges in the United States Supreme Court, rather than working through the legislative process, have suffered some recent setbacks. Prominent Republicans, and even the Republican National Committee, have participated in two recent actions.
This week, 68 members of the House of Representatives and 13 senators filed a friend-of-the-court brief opposing the administration's efforts to overturn the landmark 1973 Supreme Court decision legalizing abortion. This group included five Republican congressmen and six Republican senators, among them Arizona's Barry Goldwater.
While most observers -- including both pro-choice and anti-abortion forces -- do not believe the landmark decision is in jeopardy, pro-choice advocates say they intend to fight anyway.
``I don't think [the effort] reflects worry as much as a sense of outrage that the government takes this position,'' says Laurence Tribe of Harvard Law School, who wrote the brief for the members of Congress.
On another front at the Supreme Court, Senate Republican leader Robert Dole last week dealt a severe blow to administration efforts to win a North Carolina voting-rights case. Senator Dole and nine other members of Congress (including four Republicans) filed a friend-of-the-court brief directly contradicting the Reagan Justice Department's argument in the case.
In a similar move, the Republican National Committee and North Carolina Republicans also sided with the black plaintiffs, opposing the administration's stance in the case.
The Reagan administration has long viewed the Supreme Court as a forum in which to enact conservative reforms. Last term the administration unsuccessfully argued for silent prayer in public schools, to reverse what it sees as judicial hostility toward religion in cases involving the separation of church and state.
This year, administration officials are hoping to gain the opportunity to argue that affirmative-action minority-hiring plans that use numerical goals are unconstitutional.
During the past six months under the leadership of Attorney General Edwin Meese III, the administration has taken a much firmer stance in its Supreme Court cases.
For example, in 1982 when the abortion issue came before the Supreme Court, the Reagan Justice Department under then-Attorney General William French Smith stopped short of arguing for the complete overturn of the court's 1973 abortion decision. This fall, however, the department will argue that the Supreme Court should overturn its abortion decision and ``return the law to the condition in which it was before that case was decided.''
In effect, the administration is asking the Supreme Court to rescind what has to this point been recognized as a constitutional right for all American women. If the law is overturned, state legislatures would decide whether abortions could be legally performed in their own states.
According to Professor Tribe, 31 states have criminal laws restricting abortions, 13 of them with legal provisions to jail women up to five years for having an abortion.
Tribe noted that the Supreme Court's 1973 decision rendered such state laws moot, but he added that the laws are still on the books and would become immediately effective should the Supreme Court reverse the abortion decision.
In the North Carolina voting-rights case, the administration is battling what it sees as an attempt by a federal appeals court to guarantee election successes by minorities in proportion to their numbers in the community at large.
The case stems from a ruling last year when the appeals court struck down North Carolina's system of electing representatives to the state legislature. The court ruled that the system diluted minority voting strength in violation of the Voting Rights Act.
The Justice Department notes that black candidates have been elected under the current system, demonstrating that equal opportunity exists for minorities in elections. Administration officials argue the act should therefore not apply.
Senator Dole and the other lawmakers say in their brief that the Justice Department is misreading the intent of Congress when the amendments to the Voting Rights Act were passed in 1982. The ``totality of circumstances'' were to be considered in voting-rights cases, the brief says. It says the Justice Department's reading of the law is excessively narrow.
According to Mark Braden, legal counsel to the Republican National Committee, North Carolina and national Republicans entered the case on the side of the black plaintiffs because they stand to gain voting strength if large, Democratically controlled districts are broken up into smaller voting precincts.