Curbing court power: efforts seem stymied

Congress may have caught the conservative zeal for cutting budgets, but so far it is moving slowly when it comes to trimming the power of the federal courts.

With some two-dozen bills to limit judicial authority now pending on Capitol Hill, not one seems headed for easy passage as the August recess nears. In the House, 16 of the bills are bottled up in an unfriendly subcommittee, while moderate and liberal opponents in the Senate are digging in their heels.

The proposals range from forbidding courts to order busing for school desegregation, to taking away federal court jurisdiction in cases of abortion, school prayer, or sex discrimination in the military draft. The bills have been called the most forceful attack on the federal judiciary since President Franklin D. Roosevelt tried to pack the Supreme Court with additional justices who would be sympathetic to his economic policies.

Roosevelt failed to persuade Congress to pass his court-packing bill 44 years ago, and conservatives pushing for curbs on the courts through statutes have found that their proposals are not sliding easily through today.

"It's been a long, hot summer so far, but it's been one with some encouragement," says John Shattuck, Washington director of the American Civil Liberties Union, which opposes all of the bills to restrict the courts. "The charge has been blunted somewhat by the resistance to rolling back constitutional rights by statute," he says.

The most publicized proposal is the "human life bill," an attempt to alter the Supreme Court ruling that legalized abortions. With blaring TV lights and crowds of prochoice protesters and pro-life supporters, a Senate subcommittee opened hearings in April on the bill which would proclaim human life to begin at conception.

In a quieter session earlier this month, the subcommittee took action that will delay the bill until at least January 1982 and probably lay it to rest forever. Even staunch pro-life Sen. Orrin G. Hatch (R) of Utah voiced doubts about whether the bill would be constitutional.

Peter Gemma, spokesman for the National Pro-Life Political Action Committee, maintains that the subcommittee action is not a defeat for his side. In fact, he says that the antiabortion forces reaped publicity and "consciousness raising" from the Senate hearings. Now the focus returns to a pro-life constitutional amendment, which his group prefers, even though amendments require approval of two-thirds of both Houses and three- fourths of the states.

A second major effort to overrule the federal courts by federal statute has also sailed into rough waters. Sen. J. Bennett Johnston (D) of Louisiana has been trying for almost a month to bring to a vote an antibusing measure that would be the most stringent ever passed by Congress. The proposal, attached as a rider to a Department of Justice spending bill, would prohibit courts from ordering most school busing and invite parents to challenge long-established desegregation plans all over the country.

Despite the fact that Senator johnston seems to have a majority of the senators on his side, he has not yet been able to break a filibuster launched by maverick Republican Lowell P. Weicker Jr. of Connecticut. Senator Weicker decried the antibushing measure as "anti-Constitution" and began a lonely crusade in June to keep the Senate from voting on it.

Since then, Weicker has won support from about a dozen other senators. Two attempts to stop the filibuster have fallen short of the 60 votes required. And with the tax and budget issues still hanging over it, the Senate will probably set the busing ban aside for now.

The apparent setbacks do not mean the end of congressional action on the courts. Senator Hatch's subcommittee on the Constitution is now at work on an antibusing measure. Sen. john P. East (R) of North Carolina, whose judiciary subcommittee held the human life bill hearings, plans hearings next fall on legislation to strip the courts of authority to rule on school prayer cases.

The East subcommittee will also sponsor hearings on a bill to keep the courts from making school assignments based on race and on the Johnston antibusing proposal.

So far the Reagan administration has taken no stand on attacks on court authority, except that it has attempted to keep Congress away from such sticky social issues until it has dealt with the economy.

President Reagan's choice for solicitor general, Rex E. Lee, told senators at his confirmation hearing that the Constitution may give Congress the power to limit court jurisdiction. "Whether you have that power or not, I would hope that you would use that sparingly," said Mr. Lee, a conservative and former dean of the law school at Brigham Young University in Provo, Utah.