Rehnquist era may mean new course for high court
Boston — As the lights go up on the new session of the United States Supreme Court today, a range of issues from affirmative action to capital punishment will take turns at center stage over the next 10 months. Also among the constitutional cases glaring at the nine justices and the public between now and next July will be some dealing with the rights of pregnant women, product liability, election laws, and environmental regulations. The court is also expected to consider cases involving school desegregation and preventive detention of allegedly dangerous criminal defendants.
During the session, the nation will closely watch to see whether what is being called a new ``conservative coalition'' will change the course of American justice.
The court is led now by newly confirmed Chief Justice William H. Rehnquist, a staunch conservative and a champion of judicial restraint. Among other things, Mr. Rehnquist believes that the federal government should not meddle excessively with state laws; that business should not be overly restricted by government regulations; and that the so-called wall of separation between church and state may be penetrated as long as one religion is not preferred over another.
Joining Rehnquist on the right end of the Supreme Court's political spectrum is recent appointee Antonin Scalia, another strong advocate of minimum interference by the federal government in the affairs of the states.
Based on their records, Associate Justices Sandra Day O'Connor and Byron R. White predictably will often vote with Mr. Rehnquist and Mr. Scalia on key issues of economic and social policy.
The court's left is anchored by veteran liberals William J. Brennan and Thurgood Marshall. Harry A. Blackmun, John Paul Stevens, and Lewis F. Powell Jr. have traditionally held down the center.
Justice Powell in many cases will cast the ``swing vote,'' says court analyst David M. O'Brien, an associate professor of government and foreign affairs at the University of Virginia. Professor O'Brien points out that this Nixon appointee has cast the deciding vote on a great many issues during his years on the bench.
More than 100 cases are already docketed for one-hour hearings during the 1986-87 court session. Shortly, 60 to 80 more cases will be added to this list.
Laurence Tribe, a Harvard law professor who frequently argues cases before the high court, points out that the behind-the-scenes persuasive power of justices in winning colleagues over to a point of view is central to the decision-making process of the court. In looking at the new term, he says that the ``dynamic duo of Rehnquist and Scalia'' will be a force to be reckoned with.
Resolution of cases in the following areas could give early indications of the direction of the Rehnquist court:
Affirmative action. Two suits will be reviewed challenging plans that give job advantages to minorities over nonminority workers. In one, an Alabama court mandated the promotion of a black state trooper for every white officer given a higher rank. In the other, a California county agency -- applying an affirmative action formula -- has allowed a woman to be promoted over a man who scored higher on a qualifying exam.
Last term, the justices reaffirmed the principle of affirmative action, rejecting the philosophy of the Justice Department that hiring in the workplace should be ``color blind'' and that racially inspired remedies were only appropriate in cases of discrimination against specific individuals. However, the court also said it was inappropriate to lay off ``innocent'' nonminority workers before minority employees with less tenure as a response to a history of societal bias.
Creationism. The justices will try to adjudicate a controversy between religious fundamentalists and secular educators over the teaching of Biblical accounts of the origin of man. Creationists have sued school boards in several states to achieve ``balanced treatment''-- that is, the presentation of the Scriptural accounts along with instruction about evolution in the classroom.
Louisiana's lower courts invalidated a state law which required such scholastic parity on the basis that the teaching of Bible-based beliefs in a public classroom violated the First Amendment's guarantee of separation of church and state.
Justice Scalia, formerly an appellate jurist in the Washington, D.C., circuit, has not compiled a clearcut record on church and state issues. But Chief Justice Rehnquist has consistently voted for school prayer and aid to parochial education on the basis that these are allowable under the Constitution as long as one religion is not ``preferred'' over another.
But historian and ``establishment clause'' scholar Leonard W. Levy criticizes Rehnquist for ``misreading'' the Constitution and the intent of the Founding Fathers and threatening the separation of church and state.
Death penalty. Although the justices in recent terms have rejected the concept that capital punishment is ``cruel and unusual'' -- and thus in violation of the Eighth Amendment -- the court has overturned individual sentences where it saw inequity, capriciousness, or bias in the process. Now plaintiffs from Georgia and Florida offer statistical evidence indicating racial disparity in the application of capital punishment. The statistics, they claim, show that blacks who kill whites are executed substantially more often than persons who murder blacks.