Fizzing up the Constitution

Many people think of the US Supreme Court as a kind of high class soft-drink vending machine in which you put in your quarter, press a button, hear the wheels whir and see the end product come tumbling out -- a constitutional decision. In other words, the court is just the dispenser; it doesn't mix up the policy itself. Not so, say most political scientists, I think. They see the public beguiled by the high tribunal's trappings as a court, with judicial appurtenances, but they reserve judgment on the court as an automatic vending machine. It is a policy maker, they believe.

"More than most previous courts, the Burger court openly acknowledges that this is what it is doing," says Martin Shapiro, professor of law at the University of California, Berkeley. What he refers to is his thesis that the high court makes policy all the time; the unusual thing about the Burger court, he says, is its frankness in doing it. "No member of the current court cares much about legal scholarship. . . . We have come to expect five or six opinions in major cases, none of which does more than state the author's policy preferences dressed up in cursory and pro formal legal argument."

Is this an attack on the high court? It isn't. Mr. Shapiro publishes his study under the impeccable conservative auspices of the American Enterprise Institute of this city, included in a paperbound collection of essays ($6.75) called "The New Political System," edited by anthony King. For a good many laymen the Shapiro survey is a startling conception. To Mr. Shapiro it is just the way things have been going on for a long time.

"In the past 25 years the Supreme Court has been a major domestic policy maker in the United States," he begins. What does this mean? Well, the court has given us five major policies in that time: It desegregated schools (when President and Congress didn't act). it reapportioned congressional and state legislative districts. (Before this some districts had 18 times the number of voters as others). It made major reforms in the criminal justice system. (Every defendant is entitled to a lawyer.) It greatly diluted state obscenity laws (for better or worse). It opened up birth control and abortion services to working class women and girls. Mr. Shapiro feels on the whole that the result has been salutary or, at least, reflects the changing mood of the times. The court before that, he notes, handed down its controversial school prayer decisions -- another major policy decision.

How about the row between the Roosevelt New Deal and the Hughes court? Mr. Shapiro's retrospective view follows:

"In the grip of a sterile and outmoded laissez-faire economic philosophy the [Hughes] court declared these [New Deal] programs unconstitutional. In his righteous wrath the President then rose up to threaten the court with his 'court packing' bill, and in 1937 the court surrendered. The surrender consisted of the court's abandoning the protection of so- called economic rights, which really consisted of nothing more than reading its own economic policy preferences into the Constitution, and instead taking up the cause of civil rights and liberties, which really are protected by the specific wording of the Bill of Rights."

Coming down to date, Mr. Shapiro contrasts the Warren and Burger courts. He thinks the latter is still activist and policy-making, but its direction has changed. While the Warren court was moving in the direction of constitutional guarantees of national basic minimums in education, housing, subsistence, legal services, birth control services "and other facets of the modern welfare state," he argues that the Burger court slowed down or halted the movement.

The case of School District V Rodriguezm (1973) was the great divide. A state system of school financing allowed rich districts to maintain a lower tax rate and yet spend far more per student than poor districts. Was this invalid? All 50 states used such systems. Two state supreme courts had declared the method unfair to the poor and hence unconstitutional. The Warren court would almost certainly have agreed with the lower courts, Mr. Shapiro guesses. It would have continued its equality trend and pushed it into new speres. The Burger court rejected the school tax change, 5 to 4. The four Nixon appointees, Justices Powell, Blackmun, Rehnquist, and the Chief Justice were joined by swing-justice Stewart. Against them was the egalitarian bloc of the later Warren court (Justices Marshall, Douglas, White, and Brennan).

Other cases followed. Yet, says Mr. Shapiro in conclusion, "it would be wrong to describe the Burger court as 'restrained," in view of its decisions in birth control, death penalty and other cases. It has simply gone down other roads. It is "hardly less activist" than its predecessors, he argues: "The crucial difference is in the style of its activism."