Supreme Court as supreme Lawmaker

In a series of major decisions the US Supreme Court once again shows itself to be a major policymaker in the United States, a unique role for a nonelected body in a democracy:

* In a 5-to-4 decision it upheld a lower court decision that New York State could give aid to parochial schools for the purpose of meeting the costs of state record-keeping and testing requirements without disobeying the First Amendment to the Constitution forbidding the establishment of religion.

* While Congress hesitates on what prohibitions to use to restrain talkative former US secret agents, the court -- without oral hearing and in an unsigned opinion, with three dissents -- ordered former CIA man, Frank Snepp, to "disgorge" profits from a book on Vietnam. Provisions of the sweeping opinion could apply to other federal officials. Mr. Snepp violated a previously signed standard agreement not to publish without "specific prior approval." The ruling might involve future "leaks" in Washington.

* The court ruled 5 to 4 that teachers in private universities are part of management and hence cannot unionize for collective bargaining. Some 80 such bargaining agreements are in force.

In other cases, the court ruled Feb. 20, 6 to 3, that the Internal Revenue Service can demand Signature samples in tax-evasion castion is protected by the free-speech clause of the First Amendment, so that a ban by the town of Schaumberg, Ill., against door-to-door solicitation, is unconstitutional.

Although the previous Warren court "under Chief Justice Earl Warren) was attacked for "activism" by President nixon (who named four members to the present court, headed by Chief Justice Warren E. Burger), the high tribunal appears to be as much a policymaking body today as in the past, though not commonly recognized as such. President Nixon had said he wanted "strict constructionists," and named Chief Justice Burger and Associate Justices Harry A. Blackmum, Lewis F. Powell Jr., and William H. Rehnquist.

A turning point in the court's philosophy came during the 1930s in a clash with President Franklin D. Roosevelt. When the court found many of FDR's New Deal programs unconstitutional, that laissez-faire economic position produced a Roosevelt threat to "pack" the court with more favorable justices.

In 1937, the court retreated. In effect, the court majority accepted the new philosophy of government social interventionism, translated into a proliferation of regulatory bodies and civil rights laws.

"In the past 25 years the Supreme Court has been a major domestic policymaker in the United States," says Martin Shapiro of the University of California. he cites "five major policies:"

* While Congress hesitated, the court ended racial school segregation, which it had previously called constitutional.

* The court instituted legislative reapportionment. Previous to three major court decisions, some congressional and state legislative districts has as many as 18 times the number of voters as others. Now no district varies by more than 20 percent.

* The court profoundly altered the criminal justice system, guaranteeing every accused person a lawyer and restricting police abuses.

* The court loosened federal and state obscenity laws, producing a controversial era of permissiveness across the US.

* Finally, court rulings opened up birth control and abortion services with results which have produced continuing controversy ans profound social changes.

Many political scientist argue that in the deadlocks and stalemates of the unique American executive-legislative separation of powers, the high court acts as a kind of superlegislature. The court keeps the Constitution abreast of modern conditions by frequent interpretation.

The court has played a large role in preventing taxpayers' money going to private and parochial schools. The 5-to-4 decision this week may open a loophole to this. A 1974 New York State law provides up to $10 million to reimburse private schools for costs in giving tests and keeping school records required by the state. This is the first sanction of direct financial aid to church-sponsored schools, the dissent, written by Justice Blackmun, declared.