Courts steer a middle course in rulings. Judges grapple with complex social issues, but avoid sharp turns to the political left or right.
Boston — The dockets of the nation's courts are becoming increasingly filled with social controversies - including those involving abortion, surrogate motherhood, sexual molestation, and the right to refuse medical care. This year, lower court judges and United States Supreme Court justices have continued to balance - as they have in recent decades - individual rights of privacy with government responsibility to protect the common good.
The following trends have surfaced at almost all judicial levels in 1987. And they will almost certainly reach into 1988 and beyond:
Individual rights in noncriminal areas tend to prevail where public policy is unclear or social conflict exists.
Protections for the rights of the criminally accused are being slightly cut back - with a new emergence of concern for the rights of victims.
The US Supreme Court is showing reluctance to overturn rulings of lower courts unless the decision are clearly in conflict with the federal Constitution.
Issues that focus on ethics - personal and societal - are increasingly being resolved in the legal arena.
Despite breaking new ground in subject matter, the courts are steering a middle course, avoiding sharp turns to the political left or right.
The Reagan judicial revolution - promised or threatened, depending on one's point of view - just hasn't developed over a seven-year period. A conservative social agenda, championed by US Attorney General Edwin Meese III, has not been realized through judicial fiat.
For example, the administration's key target - legalized abortion - still stands. The landmark 1973 Roe v. Wade ruling, which permits abortion without regulation in the early stages of pregnancy, remains the law of the land.
A host of cases are on the horizon that address strict state restrictions of abortion, however. The high court recently split 4 to 4 over a challenge to an Illinois statute that required unmarried minors to notify their parents at least 24 hours before getting an abortion, subject to some exceptions. Such a requirement has been viewed by appellate courts in several states as an invasion of privacy. The tie-vote upheld the lower court ruling that struck down the one-day waiting period, but it leaves room for the issue to be raised again.
Sharply divided courts have also rejected the idea of school prayer, a program advocated by the White House. Here, too, the Supreme Court divided 4 to 4 over a New Jersey statute permitting a period of silence in public schools. This leaves intact for now a lower-court finding declaring this law in conflict with the First Amendment's guarantee of separation of church and state.
In the criminal justice area, the Reagan agenda has fared little better. Capital punishment is still on the books but judges are carefully scrutinizing individual cases - and striking down the death penalty - where there has been procedural error or clear racial bias. The Supreme Court, however, has refused to accept the premise that capital punishment is inherently unfair to ethnic minorities and the poor.
Also, the nation's courts - including the Supreme Court - are narrowing the circumstances under which evidence against a defendant must be excluded because of police misconduct or improper procedures. But, contrary to some predictions, even a law-and-order leaning court has not seriously dismantled landmark protections for those accused of crime, such as Miranda warnings and the Exclusionary Rule.
Upstaging court rulings themselves during 1987 was the focus on judicial personnel. The Senate defeated the nomination of Judge Robert Bork to the high court, and the candidacy of Judge Douglas Ginsburg was short-lived after it was revealed that he had smoked marijuana early in his career.
Judge Bork, a disciple of ``original intent'' - the concept that, in applying the Constitution, judges should limit their interpretation to the intentions of those who drafted and ratified the document - triggered as much controversy as any high court nominee in US history. His views particularly alarmed women's groups and civil rights advocates who feared that Mr. Bork, if seated on the Supreme Court, would ``turn the clock back'' on advances against gender bias and race discrimination.
The present Supreme Court candidate, Judge Anthony Kennedy, is seen as a mainstream conservative who will likely tip the court to the right without upsetting its general balance.
Judge Kennedy, who is expected to be confirmed by the Senate in late January or early February, may furnish the deciding vote in some upcoming cases regarding public aid to churches, obscenity, libel, rent control, rights of AIDS victims, free speech for the student press, and warrantless police searches.
A reconsideration by a full court of recent abortion and school prayer cases also is possible.
Meanwhile, 1987 brought a host of legal rulings in lower courts across the nation in the areas of vigilantism, obscenity, child molestation, the right to refuse medication, and fetal abuse.
Ethics has played a key role in the legal arena in 1987, with the conviction and prison sentencing of Wall Street financier Ivan Boesky for insider trading and the prosecution of several former government figures in connection with influence-peddling.
Former presidential aide Michael Deaver awaits sentencing in February for perjury about using his influence with the White House as a lobbyist. Two associates of Attorney General Meese were indicted by a federal grand jury last week on charges involving efforts to win Mr. Meese's support for Wedtech, a military contractor.
Meanwhile, independent prosecutor Lawrence Walsh is probing possible violations of law in connection with the Iran-contra scandal. Those whose actions are being scrutinized include former national-security advisers Robert McFarlane and John Poindexter and ousted National Security Council aide Oliver North.
Judicial verdicts are expected soon in two highly publicized cases on sexual molestation and surrogate motherhood. Both could have far-reaching implications.
The McMartin Pre-School case in California finally came to trial in July after 17 months of preliminary hearings and $5 million in public expenses. Two of the seven original defendants are being tried on charges of sexual molestation of nursery-school youngsters. The charges against the other five defendants were dropped.
In New Jersey, the state Supreme Court is due to rule on parental rights in the so-called Baby M surrogacy case. At issue is the legality of a contract that provides for a woman to bear a child for an infertile couple in return for money.
A lower-court finding validating such an agreement has sparked national controversy over the issue. Over 60 surrogacy-related bills have been introduced in 27 state legislatures. More are expected in 1988.
Next: Summit brightened Reagan's darkest year.