Bench Grows More Conservative Justices Continue Trend to Limit Individual Protections Guaranteed by Constitution. SUPREME COURT

By Marshall Ingwerson, writer of The Christian Science Monitor | The Christian Science Monitor, June 28, 1990 | Go to article overview

Bench Grows More Conservative Justices Continue Trend to Limit Individual Protections Guaranteed by Constitution. SUPREME COURT


Marshall Ingwerson, writer of The Christian Science Monitor, The Christian Science Monitor


THE Supreme Court that Ronald Reagan built has covered considerable ground in narrowing the use of constitutional protections in criminal law, abortion rights, civil rights, and religious practices.

Two of its last decisions, issued June 25, point to how far the court will allow states to intervene in abortion and right-to-die cases.

On the civil rights front, a decision is expected shortly on a race-based program of the Federal Communications Commission. Lawyers and scholars are closely watching the case for signs of how far the court is moving toward a "colorblind" legal system.

In future court terms, possibly the next one, which begins in October, the conservative hold appears likely to solidify.

The conservative bloc on the court is now commonly pegged at 4-1/2 justices out of nine. The half is Sandra Day O'Connor, a Reagan-appointee but a swing vote on many high-profile issues, such as abortion.

But three justices, none of them in the conservative bloc, are more than 80 years old and more and more likely to retire. Speculation about appointments is growing.

President Bush's judicial appointments to lower courts are generally considered just as conservative as Mr. Reagan's were. Three people often mentioned as Mr. Bush's likely first Supreme Court appointee are: US Solicitor General Kenneth Starr, Sen. Orrin Hatch (R) of Utah, and US Trade Representative Carla Hills.

Liberals, viewing the court with alarm, see it retreating steadily from protecting individuals against government intrusion or the tyranny of the majority.

"The move is clearly away from republican liberties," says University of Virginia political scientist and court-watcher David O'Brien.

Conservatives see a stricter constitutionalism in court decisions, a pruning of the liberal activism of previous courts.

"It's going on quite carefully and quite thoughtfully," says William Bradford Reynolds, a Reagan-appointed deputy attorney general now with the National Legal Center for the Public Interest.

Perhaps the most dramatic new direction this court has taken concerns the free exercise of religion. In a recent case involving a native American fired for smoking peyote, a hallucinogen, as part of his traditional religion, the court ruled that the free exercise of religion clause in the Constitution does not preempt otherwise valid criminal laws.

Since the 1960s, the court has given heavy weight to the free-exercise clause when balanced against other legal concerns and conflicts. The significance of the peyote decision, according to William Van Alstyne, a constitutional law professor at Duke University, is that the majority opinion, written by Antonin Scalia and signed by five justices, refuted the notion of balancing.

Theoretically, he notes, a priest could be prosecuted for offering communion to underage youths in a state that bans dispensing alcohol to minors. …

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