Court at the Crossroads

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COVER STORY

The 1984 election may chart the future course of American justice

In the white temple it is always quiet. No lobbyists or reporters hover about the paneled chambers; tall bronze gates seal off the cool marble passageways from the public. The black-robed Justices emerge onto the high bench only to hear the arguments of deferential lawyers, and then vanish again behind a thick velvet curtain. They deliberate in secret, insulated and remote from the hurly-burly of American politics.

In principle, the Justices of the U.S. Supreme Court do not write laws, they merely apply them. They "breathe life, feeble or strong, into the inert pages of the Constitution and of statute books," wrote Justice Felix Frankfurter.

Yet, as Constitutional Lawyer Floyd Abrams notes, "it matters who does the breathing." The Justices unavoidably bring their own personal values and political philosophies to the bench. In modern times, they have not hesitated to pass judgment on such basic moral issues as abortion and the death penalty. Indeed, over the past three decades, the Brethren, as the nine Justices are still called even though a woman has joined their ranks, have given such vibrant life to the constitutional guarantees of equality and individual liberty that American society stands transformed.

Though the Supreme Court does sometimes "follow the election returns," the Justices more often follow the dictates of legal precedent or their own consciences. The public's only real influence on the high court comes through its power to elect Presidents, who appoint the Justices, and Senators, who confirm them. Once a Justice enters the court's sanctum, he can stay for life.* The high court that begins its traditional nine-month term this week is a gerontocracy: five of the nine Justices are 75 or older. Not since Franklin Roosevelt railed against the Nine Old Men almost 50 years ago have the Justices been so aged (see box).

As it did eventually for F.D.R., the inevitability of death and retirement on the high court offers a historic opportunity for the winner of the 1984 presidential election. He will almost surely fill not one but several vacancies. Assuming that the appointees are relatively young, the next President could set the Supreme Court's course through the end of the century.

After a period of intense liberal activism under Chief Justice Earl Warren in the '60s, the court drifted under Chief Justice Warren Burger in the '70s, neither truly liberal nor conservative but divided and unpredictable. Decisions often turned on one vote. But since the appointment of Sandra Day O'Connor by President Reagan in 1981, many experts have begun to discern a rightward tilt. "There is a trend, but it is a slow oozing, a step-by-step process, and not a leap," says University of Chicago Law School Professor Philip Kurland. Agrees A.E. Dick Howard, a professor of law at the University of Virginia: "The 1984 Burger Court may be the conservative counterpart of the 1962 Warren Court—the year it turned the corner. A swing to the right has been in the works for a decade, but the momentum has quickened in the most recent term." Even several of the Brethren acknowledge the shift. Last month Justice Harry Blackmun told a private gathering at the Cosmos Club in Washington, B.C., that the