Smith's blast at federal courts gets mixed reviews
The New Right has sharply attacked Attorney General William French Smith for failing to lead a ''Reagan revolution'' in the Department of Justice. Others have criticized him for failing to lead effectively, period.
Mr. Smith responded last week in the form of a speech that has pleased ultraconservatives and sent shock waves through much of the legal community. At a Federal Legal Council meeting in Reston, Va., he lambasted the federal courts for ''dubious and unwise intrusions'' into legislative areas and for granting rights that were only ''implied'' by the Constitution, such as the right to marry, the right of interstate travel, and the right of sexual privacy.
Although the Attorney General added that the Reagan administration does not want to throw out all rulings on ''implied'' rights, his speech indicts the past 20 years of federal court action and calls on judges to respond to the ''groundswell of conservatism'' in the 1980 elections.
''I can't remember in recent years any wholesale set of proposals dealing with the courts from a person as high as the attorney general,'' says A. E. Dick Howard, constitutional law professor at the University of Virginia. ''Usually they come one attack at a time.''
Since the speech, the American Bar Association has voiced concern for the independence of the judiciary, and the American Civil Liberties Union (ACLU) has called the Smith speech the most ''blatant'' attack on the federal courts since President Franklin Roosevelt threatened to pack the Supreme Court in 1937.
''The attorney general seems to think that because Ronald Reagan was elected president he can take over the judicial branch and the executive branch,'' says John Shattuck, director of the ACLU Washington office.
Observers on the far right are delighted with the Smith offensive. ''I would hail his speech,'' said Daniel J. Popeo, general counsel for the conservative Washington Legal Foundation. ''There's a feeling among many members of the bar and judges that the courts have gone too far.''
Despite its broadside hit at the courts, the Smith speech was short on specifics. Many observers see it as merely the first salvo in a major new campaign. The speech appears to be the first move toward dealing with the so-called ''social issues'' that the far right has been trying to move to the front burner, such as prayer in schools, school busing, and abortion.
The Reagan administration still has taken no stand on some 40 bills now pending in Congress to strip federal courts of jurisdiction in cases involving those issues. The Smith speech gives no indication of how his department will act on those bills.
However, the attorney general clearly signaled that the Justice Department will begin seeking out cases that will give courts a chance to reconsider earlier controversial rulings, especially in social areas. And the department almost certainly will shy away from defending civil liberties as constitutional rights.
Laurence H. Tribe, professor at Harvard Law School and an administration critic, pointed to a recent case involving alien children in Texas as a sign of the new direction. In that case, illegal alien children are claiming a right to a free public education under the constitutional guarantee of equal protection. Although the Carter administration had entered on the side of the children, the Justice Department under Mr. Smith pulled out of the case, citing no substantial federal interest in the issue.
''The alien case is overwhelmingly important,'' says Professor Tribe. ''For the Department of Justice to take a position that the 14th Amendment is of no interest to the government is an outrage and unprecedented in America's history.''
Professor Howard counters that it is ''reasonable'' for the Reagan team to drop the alien case and to try to ''affect the flow of litigation.'' However, he adds, ''I don't see how they can have much effect'' in determining which cases judges choose to hear.