Supreme Court to focus heavily on fundamental rights

THE opinions rendered by the United States Supreme Court in the approximately 150 cases it will consider this session could change the course of justice in areas such as minority and religious rights, police procedures, and abortion. Constitutional scholars and Supreme Court watchers, including University of California law school dean Jesse H. Choper, Michigan professor Yale Kamisar, and Harvard's Laurence H. Tribe, suggest that the following issues are pertinent as the court reviews its new cases: The first issue is whether the Justices will seriously curtail affirmative-action and reverse-discrimination laws, which guarantee jobs and priorities to minority workers in order to achieve racial balance. Civil libertarians fear that the court is moving away from minority hiring guarantees on the grounds that they discriminate against white workers, especially those with job seniority.

Attorney General Edwin Meese III, has sharply criticized affirmative-action procedures and lobbied for bias claims to be handled on an individual and case-by-case basis.

A key test will come in a Michigan case to be heard this year, in which a group of nonminority school teachers -- who were laid off -- argue that their rights were violated under a union contract with their school district. The agreement provided that white teachers would be laid off before blacks as long as the proportion of black teachers was less than the proportion of blacks among the students.

Professor Tribe, a civil libertarian known for his defense of minorities, concedes that ``it is fundamentally unfair to tell white workers they must be displaced [under affirmative-action agreements].'' But he urges public and private jurisdictions to come up with ``creative solutions'' to compensate those who voluntarily surrender seniority to encourage job opportunities for minorities.

In other cases dealing with racial discrimination, the court will look at possible bias in the jury-selection process and examine whether prejudice should be taken into account in a murder trial of a black defendant accused of killing a white.

Perhaps, the most emotionally charged issue before the Supreme Court in the coming term will be abortion. Right-to-lifers have mounted a national campaign to reverse, or at least restrict, a landmark high court ruling of a decade ago (Roe v. Wade) which, in effect, allows abortion-on-demand during the early stages of pregnancy.

What now is under scrutiny are state statutes in respect to the ``second trimester'' of pregnancy. Lower courts in Pennsylvania and Illinois have backed a prochoice stance.

Although the Justice Department has been denied additional court time to present a brief on behalf of anti-abortionists, Attorney General Meese and other prominent members of the Reagan administration have spoken out in strong support of modifying Roe v. Wade.

Former Solicitor General Rex Lee suggests that abortion cases are being pushed by the administration, not because they believe the justices will now make an about-face on the issue, but to satisfy certain political constituencies and perhaps lay the groundwork for reversal in another year.

The second issue concerns whether the justices will hold the line on separation of church and state. In recent years, the court has moved towards ``accommodation'' of religion by the state -- allowing, among other things, a Christmas cr`eche on municipal property and tuition tax credits to parents of parochial-school students. But last term, it appeared to pull back -- disallowing classroom meditation for religious purposes and state aid to disadvantaged pupils in sectarian academies.

Professor Choper suggests that the court may go the ``other way'' in a case involving extracurricular religious activities in public schools. A Pennsylvania case could determine the future of the Equal Access Act, which Congress passed last year. Religious and civil rights groups are split over the concept. Supporters hold that after-school religious activity is no threat to other students and should be allowed under freedom of speech. Opponents see ``equal access'' as a form of constitutionally forbid den school prayer and are concerned that it could lead to religious proselyting on public property.

``This is a significant case. It involves a lot more than the use of the classroom in an activities period,'' says Choper. ``It opens a wedge for substantial religious activities in school.''

Other church-state cases on the docket involve the First Amendment's ``free exercise'' of religion clause. The cases raise questions such as: Must the Air Force allow an orthodox Jew to wear his religious skullcap while on duty; and should those who resist, on religious grounds, using social security numbers be allowed to identify themselves in other ways for government benefits?

The final question is whether the court will continue its recent trend of curtailing rights of criminals and those facing prosecution. During the last two years, justices have pruned back the so-called Exclusionary Rule and Miranda rights of suspects. This reverses a 70-year old stand on exclusion of ``tainted'' evidence from court, even if it was gathered in ``good faith'' by police, and eases rules regarding reading of rights to suspects in situations where public safety is at stake.

However, last term, the court balked at a long-time police practice of shooting at fleeing felons and overturned the death sentence of a defendant convicted under improper courtroom procedures.

Now the justices will review a slate of cases involving warrantless searches of suspects, the right of indigents to counsel, and protection of prison inmates against the use of excessive force during a riot.

Criminal justice expert Professor Kamisar suggests that the court, led by Chief Justice Warren E. Burger, ``continues to lean towards effective law enforcement [over individual rights].'' Kamisar says the majority of justices now apply a ``reasonableness'' test in criminal justice situations. He predicts the broad dictum for use of search warrants may be importantly cut back this year. Next: Assessing the Burger Court's record and future.