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1982 elections: a referendum on nation's courts?

While Reaganomics and the Republican administration's ability to govern may be the top consideration at the polls Nov. 2, another issue, judicial independence, looms in the background.

Not always so clear-cut, but often emotion-fraught, the question of restraining activism by the nation's judges has surfaced in several campaigns across the United States. It will be tested, at least in part, in California. It will almost certainly spill over into next year's Congress and very likely surface again in the 1984 presidential election.

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Conservatives, particularly those tied with the New Right, are still smarting over the failure of the 97th Congress to pass legislation that would have reversed the US Supreme Court on abortion and strictly limited federal court jurisdiction on such issues as school busing and prayer in public schools.

The conservatives' targets were liberal judges who have taken activist roles in deciding cases involving these highly controversial social and moral issues - in essence making new laws rather than interpreting existing ones.

Some believe ''court stripping'' bills will resurface on Capitol Hill next year, particularly if the public indicates at the polls and elsewhere its continued chagrin with the courts.

Closely watched is next Tuesday's election in California. A group called Californians for Judicial Action has raised about $200,000 to defeat ''Jerry's judges'' - a trio of Gov. Edmund G. Brown Jr.'s state Supreme Court appointees who are accused of ''not being responsive to the majority of the people of California.'' In addition, a group led by Howard Jarvis, father of the Proposition 13 tax-limitation amendment, is circulating petitions to recall California Chief Justice Rose Bird in a special election next year.

According to the Nov. 1 issue of The National Law Journal (TNLJ), lawyers and judges are alarmed about the possible impact of the California referendum, if it passes. They are also concerned about the New York gubernatorial campaign, in which Republican Lewis Lehrman is asking for a recall process for judges who are soft on crime. In Tennessee, a Memphis bar association has received complaints from some judicial candidates that a conservative court-monitoring group interviewed them. The candidates were asked not to reveal the nature of the questions or the identity of the questioners. One judicial aspirant, reports TNLJ, was asked if he would apply Christian principles in deciding cases.

In Alabama, an experienced black attorney serving as a state Supreme Court justice narrowly escaped primary defeat at the hands of a former public service commissioner and recent law school graduate who campaigned for ''less judiciary in our lives, not more.''

Disenchantment with the courts and the activist role of judges is not limited to the New Right. John Hart Ely, dean of Stanford's law school, strongly argues against judicial activism, which he says is favored by many of his academic colleagues.

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''In a democracy,'' says Dean Ely, ''no elite's definition of what is right and good is entitled to any special deference.''

Early in this century, Ely notes ''something called 'liberty of contract' - which translated into the right not to pay your employees the minimum wage or to work them more than the maximum hours - was vigorously protected by the Supreme Court, although it is nowhere mentioned in the Constitution.

''The Burger court has created a modern counterpart of liberty of contract by constitutionally enshrining the right to have an abortion, although, that right, too, is nowhere mentioned in the document,'' Ely points out. He insists these things are the province of elected officials, not the courts.

While not directly disputing this legal interpretation, civil rights groups and those that oppose the New Right, stress that an independent judiciary is the only real check on the influence of vested interests on Congress.

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