Bench Grows More Conservative

Justices continue trend to limit individual protections guaranteed by Constitution. SUPREME COURT

THE Supreme Court that Ronald Reagan built has covered considerable ground in narrowing the use of constitutional protections in criminal law, abortion rights, civil rights, and religious practices. Two of its last decisions, issued June 25, point to how far the court will allow states to intervene in abortion and right-to-die cases.

On the civil rights front, a decision is expected shortly on a race-based program of the Federal Communications Commission. Lawyers and scholars are closely watching the case for signs of how far the court is moving toward a ``colorblind'' legal system.

In future court terms, possibly the next one, which begins in October, the conservative hold appears likely to solidify.

The conservative bloc on the court is now commonly pegged at 4-1/2 justices out of nine. The half is Sandra Day O'Connor, a Reagan-appointee but a swing vote on many high-profile issues, such as abortion.

But three justices, none of them in the conservative bloc, are more than 80 years old and more and more likely to retire. Speculation about appointments is growing.

President Bush's judicial appointments to lower courts are generally considered just as conservative as Mr. Reagan's were. Three people often mentioned as Mr. Bush's likely first Supreme Court appointee are: US Solicitor General Kenneth Starr, Sen. Orrin Hatch (R) of Utah, and US Trade Representative Carla Hills.

Liberals, viewing the court with alarm, see it retreating steadily from protecting individuals against government intrusion or the tyranny of the majority.

``The move is clearly away from republican liberties,'' says University of Virginia political scientist and court-watcher David O'Brien.

Conservatives see a stricter constitutionalism in court decisions, a pruning of the liberal activism of previous courts.

``It's going on quite carefully and quite thoughtfully,'' says William Bradford Reynolds, a Reagan-appointed deputy attorney general now with the National Legal Center for the Public Interest.

Perhaps the most dramatic new direction this court has taken concerns the free exercise of religion. In a recent case involving a native American fired for smoking peyote, a hallucinogen, as part of his traditional religion, the court ruled that the free exercise of religion clause in the Constitution does not preempt otherwise valid criminal laws.

Since the 1960s, the court has given heavy weight to the free-exercise clause when balanced against other legal concerns and conflicts. The significance of the peyote decision, according to William Van Alstyne, a constitutional law professor at Duke University, is that the majority opinion, written by Antonin Scalia and signed by five justices, refuted the notion of balancing.

Theoretically, he notes, a priest could be prosecuted for offering communion to underage youths in a state that bans dispensing alcohol to minors.

Mr. Van Alstyne says the court is returning to the legal view held before some key Warren-court decisions in the '60s. Still, he says, the ruling ``dramatically curtails free exercise.''

The major exception to these trends on the court is on the First Amendment guarantee of free speech. Unlike most other sections of the Constitution, the court reads the free-speech clauses ``very expansively,'' Mr. Reynolds says.

Early in June, the court decided for the second time in a year that flag-burning is constitutionally protected. The effect was to throw out a federal law that attempted to ban flag desecration.

Congress used different wording than a Texas law thrown out by the court last summer. The changes would have it easy for the court to protect the flag if it was uncomfortable over its earlier decision, says Van Alstyne, but it held firm.

The court also ruled that the press cannot print libelous statements simply by calling them opinion; but most analysts do not see this as a backing away from a commitment to free speech and press.

Little by little, the court has moved to the right regarding the protection of criminals and criminal suspects. The death penalty has been repeatedly affirmed. More than 20 exceptions have been made to the Miranda-rule requirement that a suspect be read his legal rights before he is interrogated. The use of the exclusionary rule, which bars evidence from court when it was collected improperly, has also been narrowed.

``The court has been chagrined at the number of chances criminals have to get off,'' says constitutional lawyer Bruce Fein of the American Enterprise Institute.

``This court doesn't overturn things,'' says Ronald K. L. Collins, a visiting associate professor of law at Catholic University of America in Washington, D.C. ``It chips away incrementally.''

By now, he adds, ``anybody who thinks that Miranda is serious law in this country is woefully deceived.''

The court handed down two closely aligned decisions this week on the right to die of a woman long comatose and on state requirements that girls under 18 need the consent of their parents or a judge before obtaining an abortion.

The court deferred to Missouri law forbidding the removal of life-support systems without clear evidence that the patient would so desire. The court also deferred to state requirements of parental notification in abortion cases, even Minnesota's demand that both parents are consulted, as long as a young woman can bypass her parents for a judge's permission.

In both cases, says Harvard law professor Laurence Tribe, the court was willing to impose some limits on state power. But it was also ``considerably more willing to let the majority impose its will over individuals,'' says Mr. Tribe, who predicted both decisions in his book ``Abortion: the Clash of Absolutes.''

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