Supreme Court appointees -- 'what you see' not always 'what you get'

No president knows just what he is getting when he makes an appointment to the Supreme Court. Theodore Roosevelt was disappointed in a decision by Oliver Wendell Holmes and said he could "carve a stronger backbone out of a banana."

Now, with the resignation of Justice Potter Stewart, President Reagan is called upon to make the first of what may be several appointments. The mathematical situation on the nine-man court is that there are five present septuagenarians, that Jimmy Carter failed to get any appointee (contrasted to the usual average of two per presidential term), that only two members of the present court were named by Democrats, and that the Supreme Court, in recent years, has become more and more a "third branch of the legislature" -- addressing social problems.

There is another feature in the always-changing relationship of the three-branch American government: a drive by conservative congressmen to get around recent Supreme Court decisions. They would do this by limiting the court's authority to hear cases on such sensitive social issues as school prayer , busing, and abortion. They would turn such issues back to the states. With a vacancy on the court, however, this drive is apt to be stalled until President Reagan picks the new court member and his views are appraised.

The court-curbing drive, led by Sen. Jesse Helms (R) of North Carolina, is of uncertain constitutionality in any case.

As nowhere else in the world, wrote Harvard constitutional law Prof. Archibald Cox, "Americans have developed the extraordinary habit of casting critical aspects of social, economic, political, and philosophical questions into the form of actions at law and suits in equity so that courts -- and ultimately the Supreme Court of the United States -- may participate in their disposition."

Foreign observers are startled at the American habit of accepting decisions of the Supreme Court as final on what had previously been sharply controversial issues. This is modified to some degree by the habit of bringing up other cases in the same field, which may dilute the original decision.

In 1938 Chief Justice Harlan Stone wrote a famous footnote to a case indicating that courts must intervene to protect "minorities" from the irresponsible political process and insure justice for them under the Constitution. This launched what some see as a school of modern though on the matter. Prof. John Peter Giraudo, at the University of California at Berkeley, declares that "most social reforms in the United States since the Second World War have been initiated by the judiciary."

As a reaction against this, conservative groups have attacked "activist" judges, and the battle over President Nixon's four appointees was couched in such terms.

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

The high court must interpret and modernize the meaning of the Constitution without getting out of line with the current thinking of the political side of the government and the mass of the people. One gap came under Franklin D. Roosevelt's New Deal when the conservative court (the "nine old men") could not accept the proposed extension of federal power. This was resolved when Chief Justice Hughes and other swing justices came over to the new position.

Some expected a similar clash when President Nixon made a political issue of the court and said he would reject "activists" and name conservatives or "traditionalists" to the tribunal. Actually, the so-called Burger court flowed on fairly smoothly after the activist Warren court. Once a new justice is in the lifetime post in his black robe in the Greek temple of the hallowed court, he is his own master and inclined to think of the broadest approach to problems.

Most Americans reject the idea of the Supreme Court as a superlegislature and tend to think of it is a kind of mechanical process, like a constitutional vending machine, in which the lawyers put in their coins and out rolls a prescribed decision. Something like this is true in many cases. On the other hand, the court also "follows the election returns," Prof. Shapiro says of the Burger court ("The New American Political System," American Enterprise Institute , 1978).

". . . Most of the justices seem to have thought long and hard about the big policy issues that confront the court. 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," writes Shapiro.

"More than most previous courts," he adds, "the Burger court openly ack nowledges that this is what is doing."