Would Reagan pack the Supreme Court?
Perhaps one useful function which a columnist can perform is to examine the accusations which the presidential candidates aim at each other and try to measure, as objectively as possible, their validity.
President Carter aimed one at Ronald Reagan in his address before the annual convention of the National Association for the Advancement of Colored People in Miami Beach recently. He warned blacks that Mr. Reagan, if elected, would bring about a "conservative overhaul" of the Supreme Court which would "profoundly imperil" the cause of human rights and equal opportunity which blacks and other minorities have gained through the courts.
I am not assuming to defend Ronald Reagan. Let him defend himself. But it is fair to note that this is the same complaint which was directed against Richard Nixon -- that by his appointments he would take the Supreme Court far to the right. During his period in the White House he appointed four justices, including a new chief justice, Warren E. Burger.
To judge the merit of Mr. Carter's apprehension that Reagan would likely turn the court to the far right, I would first ask some questions:
Has the Supreme Court under Chief Justice Burger and the Nixon appointees supported or seriously diluted the sweeping decisions of the court under Earl Warren in the area of criminal justice?
Has it diminished or expanded the rulings of its predecessor on desegregation?
What has the Burger court done to protect against discrimination because of sex?
The answers to these questions can shed light on where the court stands and where it may be headed.
What we need to examine is what has happened during the 10-year period in which four justices appointed by a conservative president have served on the court.
Refinements of the law, yes; minor changes, yes. But when legal scholars (I have consulted with several) and lay students of the Supreme Court look back over the pattern of decisions which it has handed down in the past decade, some rather unexpected conclusions emerge. For example:
* None of the major initiatives taken during the era of Chief Justice Earl Warren, bearing on the wide range of criminal justice and civil rights, has been reversed.
The Burger court has usually refrained from expanding them but, with the exception of the exclusionary rule on admissible evidence, thee are no indications that a number of members of the court would like to reverse them.
* While the Burger court has narrowed the reach of some of the rules of criminal justice, it has recently expanded the Warren court decisions holding that every person accused of a felony is entitled to counsel (supplied by the state if necessary) at trial.
* The court during the Burger years has not turned its back on the greatest of all the Warren court initiatives -- desegregation. It filled an important gap by giving detailed advice to the lower courts as to permissible school segregation remedies, including racial balance as a starting point. It permitted racial quotas when there had been a pattern of discrimination by companies in the past.
* The court under Warren never reached the question of northern school desegregation. The Burger court upheld school desegregation in a number of northern cities.
* The first affirmative-action cases came before the Burger court. In the Bakke case the court found that a white applicant had been unconstitutionally denied admission to a California medical school due to the use of impermissible racial criteria, but at the same time the court was sufficiently flexible to recognize the appropriateness of affirmative-action programs in higher education.
* The Supreme Court entered the sex-discrimination field during the Burger era. It was not until 1971 that the court began to use the equal protection claims of the 14th Amendment to strike down state statutes on the grounds of discrimination.
* In Roe v. Wade the Burger court invalidated most of the state statutes regulating abortions, holding that, because of the low danger of an early abortion to a woman's health, the state interest in regulating abortion was subordinate to a woman's right to determine whether or not to have an abortion.
Nixon may or may not have wanted a "conservative overhaul" of the Supreme Court. He didn't get it. Justices are named for life and they are their own men after being appointed. All Nixon got was a small degree of restraint in the liberal course the Warren court was pursuing.
Reagan may or may not want a "conservative overhaul" of the Supreme Court. But his appointments are not likely to radically redirect the court any more than the Nixon appointments did.