The Supreme Court's future
The November election will decide who makes appointments to the Supreme Court. This could have consequences for years to come. No other nation has an instrument quite like the Supreme Court. Theoretically it is as mechanical as a candy machine. You press the button and down comes a constitutional decision. But of course the high court makes law as well as interprets law. It is hard to know where one process ends and the other begins. There was a confrontation when the Roosevelt New Deal faced outgoing Hooverism. There was a kind of confrontation when Richard Nixon took over. He was brutally frank. He attacked the Warren court even before he got elected. He told the nation that he was nominating justices who ''share my conservative philosophy.''
As it turned out the Senate rejected some of Mr. Nixon's choices and others proved independent. No president can foretell how a justice will decide once he puts on the black robe. An amusing chapter is how various judges have surprised the man who named them. ''I could carve a stronger backbone out of a banana!'' fumed Teddy Roosevelt over one judge he had named who happened to be Oliver Wendell Holmes. The fact remains, however, that there is an association between the political power and the judicial power. The court's job, in part, is to adapt the majestic generalities of the Constitution to the emergent problems of the time. In that sense it legislates, too. Sitting loftily there behind their immense mahogany bar in their Corinthian marble temple, the nine robed justices seem far removed from politics. But they are aware of the unending controversy between advocates of judicial activism and judicial restraint. They are participants, too.
There are likely to be new appointments to the 1984 court. Five of the 9 members of the present Court are 75 or older. (Four of the membership, including the chief justice, are Nixon appointees). A Democrat hasn't named a justice to the Supreme Court since Lyndon Johnson picked Thurgood Marshall in 1967. The choice by the voters of the president who makes the Supreme Court selections, should be important in the days to come.
Mr. Reagan has made one appointment to the Supreme Court so far, Justice Sandra Day O'Connor, the first woman to sit. If other vacancies occur and if Mr. Reagan is in the White House, he might well pick Secretary of the Interior William Clark, presidential counselor William Meese (just nominated to be attorney general), or the outgoing attorney general, William French Smith, once the President's personal lawyer. Men like these would leave the present conservative imprint on the court for many years.
Back in 1978 Martin Shapiro of the University of California made a frank appraisal of the Burger court for the American Enterprise Institute. The judges, he said, ''seem to be aware of, and responsive to, public sentiment and the general political climate, though like other politicians they may occasionally miscalculate. When they miscalculate they sometimes retreat a bit.'' He went further: ''They seem to have made their policy choices on the basis of their own estimates of where the factual data point and their own vision of what the good life in the good state would be. More than most previous courts, the Burger court openly acknowledges that this is what it is doing.''
That famous social observer Mr. Dooley made an observation in 1900 concerning an earlier presidential contest and the mysterious high court: ''No matter whether the Constitution follows the flag or not,'' he said, ''the Supreme Court follows the eliction returns.''
