The court steps in where Congress fears to tread

The Supreme Court has been attacked in recent years for "making laws" and not just interpreting laws. The issue is revived again with President Reagan's nomination of Arizona state judge Sandra O'Connor to the high court, the first woman in history. Once again the question will rise, whether the court pushes its role as a policy-maker, or whether it simply steps in when Congress and the President leave major gaps that have to be filled.

No other democracy has a tribunal with such power and it is a constant wonder to foreigners to see such decisions, and to see the way the public accepts them. The latter phenomenon is partly due, perhaps, to a simplification of the process by the man-in-the-street. "It's in the Constitution, isn't it?" he asks. To him it seems as simple as a vending machine; you drop in a coin, press the buttons, and out pops the decision automatically. Of course it isn't as simple as that and it has been getting more complicated. In the past quarter century the high court has been a major policy maker in the nation: a kind of superlegislature. Martin Shapiro of the University of California lists five major policies it has initiated, and they are startling in the aggregate.

First was school desegregation. Then came reapportionment. Congress was reluctant to do what most observers now generally agree should have been done, and the court stepped in.

Third was a major reform in the criminal justice system: the court in effect guaranteed every accused person a lawyer and caused a reform in police searches and interrogations. The fourth move was more debatable, the court stepped into the field of federal and state obscenity laws. Under the shield of freedom of speech it greatly reduced state authority.

A fifth policy-making step was the court's opening up of birth control and abortion services to millions of working-class women. In these five fields as well as others, Professor Shapiro says, "the Supreme Court has been a major domestic policy maker in the United States."

Did the court seize these opportunities or were they thrust upon it? A little history helps explain the situation. When FDR took over in 1933 he had overwhelming public support for a series of government programs to combat the depression. The court was then in the grip of a laissez-faire economic philosophy which caused it to declare the new programs unconstitutional. Mr. Roosevelt threatened the tribunal with the "court-packing" bill -- and the court surrendered.

Things go in cycles and Mr. Nixon's conservative attitude caused him to urge a policy of "judicial restraint," administered by "strict constructionists." He was hardly successful. He named the chief justice and three other members of the Burger court, but he hardly changed the degree of so-called "activism" though he may have changed its direction. Under Chief Justice Earl Warren the court was moving in the direction, says Mr. Shapiro, "of constitutional guarantees of national basic minimums in education, housing, subsistence, legal services, political influence, birth control services, and other facets of the modern welfare state for all persons regardless of race."

I am inclined to think this stretches it a bit, but at least the new so-called "Burger court" has not moved as strongly as its predecessor.

This estimate, offered in the 1978 book "The New American Political System" published by the conservative American Enterprise Institute, shows the kind of thing faced by the new associate justice, Sandra O'Connor, if she is confirmed. Judicial "activism" is largely in the eye of the observer, it appears. Says Mr. Shapiro: "Thus, while the Burger court may want somewhat different things from the Warren court, it is hardly less activist. The crucial difference is in the style of the activism." He argues that the Burger court justices have thought out their position on the big policy issues on the basis of "their own vision of what the good life in the good state would be." And having made their decision, he adds, "More than most previous Courts, the Burger Court openly acknowledges that this is what it is doing." Is it in agreement with the political system of which it is part he asks. "So far," the author writes in 1978, "the Burger Court does not seem to be out o f step."