An Illness Ties Up the Justices

When the U.S. Supreme Court handed down a pair of eagerly awaited rulings last week, the results--two 4-4 deadlocks--were disappointing for all concerned. In one, the village of Scarsdale, N.Y., was appealing a lower federal court ruling that invalidated the town's ban on the display of a creche in a public park. In the other case, a federal court had thrown out an Oklahoma law that authorized the dismissal of public school teachers who advocate homosexual activity. The tie votes mean that the lower-court rulings stand, but the high bench's action has no value as a precedent. The difference between a decision and no decision in both cases was the absence of Justice Lewis Powell, who has just returned to the bench after missing five weeks of oral arguments while undergoing treatment of prostate cancer. Three other tie votes were also announced last week, and three additional cases were not decided when the high court took the unprecedented step of ordering new oral arguments in the same term on the same issues, apparently solely for Powell's benefit.

Why some cases were to be reargued while others were not remains a mystery, but one result was clear: much court work was done to little purpose. And there may be more such outcomes; Powell has missed oral arguments in 56 cases. His health and the eight non-results last week highlight anew the court's age. In the event of a vacancy, the Reagan Administration is ready with an updated list of prospective Justices. White House Counsel Fred Fielding told TIME last week that he has also constituted a small new committee to advise the President on Supreme Court nominations. There are only three members: Fielding, Attorney General Edwin Meese and White House Chief of Staff Donald Regan. "We don't expect a vacancy," said Fielding, "but we're prepared."

The Burger court is the second oldest in history, with an average age of 70, less than two years younger than the Nine Old Men who made Franklin Roosevelt miserable until they began leaving the court in 1937. The present high bench is "the first ever to have a majority of its members 76 or over," calculates Harvard Law Professor Laurence Tribe. Even the younger Justices have reached the outer edges of middle age. The youngest, Sandra Day O'Connor, celebrated her 55th birthday last week.

While such a heavy concentration of venerability on one court is unusual, 34 of the 102 Justices have continued past their 75th birthdays, including such luminaries as John Marshall, Roger Taney, Oliver Wendell Holmes and Louis < Brandeis. John Harlan, who retired in 1971 at the age of 72, became nearly blind at the end of his tenure, but "those last five years made him one of the greatest Justices in history," says Stanford Constitutional Scholar Gerald Gunther. On the other hand, Harlan's longtime colleague and adversary Hugo Black, who did not retire until just before his death at 85, seemed to decline. "The nicest thing you could say is that he was not as vigorous in his last years," says Columbia Law School Dean Benno Schmidt.