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
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
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
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
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
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. …