Reagan's `Third Term'

JUSTICE

WHEN Ronald Reagan started his eighth year in the Sacramento, Calif., statehouse, West Coast reporters speculated about whether he would run for a third term as governor. He said he wouldn't, but many local reporters insisted that he would. Governor Reagan finally made a Sherman-like statement to the national press, explaining that he would look like a hypocrite if he ran again, since he had often stated publicly that he opposed third terms.

Later, finishing his second term in the Oval Office, President Reagan was barred by law from extending his tenure in the White House. That did not deter some enthusiastic supporters, who sought a Congressional change to allow a third term.

But in one area, the judiciary, the former President has virtually effected a ``third term.'' Reagan's appointments to the federal bench over an eight-year period exceeded in number those of any past chief executive. And his three additions to the United States Supreme Court have tipped the balance from liberal-to-moderate to moderate-to-conservative.

The just-completed Supreme Court session now has brought the Reagan ideological agenda into full bloom. Severe cutbacks in affirmative action, shoring up of the death penalty, and new limitations on the rights of prisoners, among other decisions, have largely been the work of the coalition of Reagan appointees, Associate Justices Anthony Kennedy, Sandra Day O'Connor, and Antonin Scalia. Votes of this trio, together with sitting conservatives William Rehnquist and Byron White, tipped the scales to the right and perhaps set a judicial agenda for the rest of the century.

Among the accomplishments of the Reagan ``third term'' court:

Holding the line on what had for two decades been a forward march in the workplace for blacks and women. Now these groups must prove specific discrimination to get legal relief. And white employees who believe that they have been disadvantaged by affirmative action programs have the right to seek help in court.

Reaffirmation of the death penalty as constitutionally legal and as a deterrent to crime. The high court has invalidated capital punishment sentences where police or court procedures have been found improper, but they have refused to reverse it for 16- and 17-year-old murderers, or for the mentally retarded.

Weakening of criminal defense protections, with broad exceptions to the Exclusionary Rule, involving tainted evidence and Miranda rights of those accused of crimes.

Reagan's judicial ``third term,'' however, did not turn into a bonanza for the extremes of the political right, as some had predicted. Affirmative action is still in place despite some telling blows to its basic planks. Those accused of crime are still protected from police misconduct and procedural mistakes, although some of these protections are watered down.

There are relatively few executions in the US and the structure for appeal from capital sentences is well defined.

Freedom of speech and expression enjoys judicial sanction even in the area of flag burning and ``indecent'' telephone messages.

The Reagan court rulings are evoking cries from the political left that the rights of the poor and minorities have been diminished. The fact is that the rulings are activist and conservative, but not necessarily repressive. Probable new appointments to the Supreme Court by President Bush will solidify a clear right-of-center approach. This majority could well return justice to mainstream America and disadvantage the nation's have-nots.

A referendum on the Reagan presidency must necessarily await the judicial action of the next few years.