Conservatives may muzzle or 'reorient' high court
President Reagan may tip the balance in the Supreme Court to alter the high court's approach to controversial social issues such as federal aid to parochial schools, school prayer, and abortion.
The nine-man court has not had a new member in five years, contains five seprugenarians, and is closely divided on some of these issues.
Simultaneously, a right-of-center group in Congress is proposing to bypass the Supreme Court on some or all of these issues, and to send jurisdiction back to the states without going through the process of writing a constitutional amendment. The proposed bypass procedure was used at least once, successfully, in 1867. Currently, there are enough "social issues" so that a majority might be found for the procedure in Congress. Committee hearings are in progress.
The Senate passed a measure to side-step the Supreme Court in prayer cases in 1980, but the House failed to act.
Mr. Reagan's views might be transferred to anyone he appointed to the high court if and when a vacancy occurs. Nor- mally there are about two vacancies in a four-year term. As a presidential candidate, Reagan supported legislators who favored constitutional amendments on social issues. Rep. Henry J. Hyde (R) of Illinois, for example, favors one on abortion. Congress just agreed to ban use of federal tax money to help pay for abortions in the case or rape or incest.
Education Secretary Terrel H. Bell testified June 4 for federal tuition credits to help parents pay tuition at parochial and private schools. This is an issue in which the vote on the Supreme Court has been close on various cases. n 1869 in "Ex Parte McCardle," the Supreme Court upheld an 1867 law that denied its authority to hear appeals from certain people imprisoned in the Civil War. Why not simply curb the court again in the new, controversial "social issue" cases, advocates ask, and turn the matter back to the respective states?
North Carolina Republican Sens. Jesse Helms and John P. East make the proposal. Four court-curbing bills have been introduced in the Senate and 23 in the House of Representatives.
"It's the court's fault," Senator East says. He would remove federal court jurisdiction over abortion cases. "It's the abuse of power of judicial review. The court has been eroding the deliberative process of Congress."
"Not so!" says Rep. Robert W. Kastenmeier (D) of Wisconsin. "It's a form of chastisement against the court. If we do it in one case, we could do it in many cases."
Some students of constitutional law declare the Supreme Court has extended its authority.
"As nowhere else in the world," Prof. Archibald Cox has said, "Americans have developed the extraordinary habit of casting critical aspects of social, economic, political, and even philosophical questions into the form of actions at law and suits at equity so that courts -- and ultimately the Supreme Court of the United States -- may participate in their disposition."
A new Reagan high court appointee might alter the decision on federal aid to parochial schools. Here are recent rulings:
* 1947 -- the court approved, 5 to 4, a public subsidy for bus service to parochial schools
* 1968 -- approved, 6 to 3, free secular textbooks in high schools.
* 1971 -- approved, 5 to 4, federal aid for constructing secular buildings on church school campuses.
* 1973 -- rejected two New York variants of parochial tuition aid, one 8 to 1 , the other unanimously.
* 1973 -- rejected, 6 to 3, a Pennsylvania tax to help pay parochial tuition.
* 1980 -- allowed, 5 to 4, New York payments to parochial and other schools in giving tests and keeping records.
In the 1973 case President Nixon supported congressional attempts to give tax credits to church schools. His four appointees to the court however split 2 to 2 in t he major case.
A Reagan appointee might tip the balance.m