Supreme Court Facing Politically Tinged Cases : White House Aggressively Seeking Conservative Victories on Quotas, Abortion, Prayer in School

The Supreme Court reconvenes Monday for a new term that will be dominated by an unusually wide array of politically charged cases, including several controversies in which the Reagan Administration is aggressively seeking to advance the conservative cause.

Among several important cases involving race, the Administration is asking the court to put new constitutional limits on affirmative-action plans. Government lawyers want the justices to prohibit a public employer from penalizing whites to protect the jobs of blacks who have not been shown to be direct victims of discrimination.

Abortion Ruling

The Administration is also asking the court to overturn its landmark ruling legalizing abortion, to uphold state aid to a college student preparing to become a minister and to allow student prayer groups to use public high school facilities that are open to non-religious organizations.

Significant rulings on political gerrymandering, voting rights, criminal procedure and freedom of speech and press also are expected before the court adjourns next summer.

The court’s wide-ranging docket contrasts sharply with the previous term, when cases involving separation of church and state dominated.

Although five of the nine justices are 76 or older, a court spokesman said that none are suffering serious health problems, and Justice Lewis F. Powell Jr., who missed more than two months last term while recovering from a prostate cancer operation, is working at full capacity. Powell, 78, is now hiring law clerks for the 1986-87 term and, an aide added, even “looking around” for prospective clerks for 1987-88.

Administration Briefs

For the term that begins Monday, the Justice Department--headed since early this year by Atty. Gen. Edwin Meese III--has filed strongly worded “friend of the court” briefs urging rulings that would be in line with the Administration’s generally conservative philosophy.

Although few authorities expect the court to veer sharply from the middle course it has invariably followed under Chief Justice Warren E. Burger, its willingness to plunge into such controversies as affirmative action and abortion has raised serious concern among liberals. The American Civil Liberties Union, noting that most of the lower court decisions in these cases favored civil rights groups, calls the court’s willingness to review them “ominous.”

Some conservative legal experts see a potential payoff in the Administration’s campaign to influence public opinion on key legal issues.

“Most of the justices can be influenced by public opinion and what they think will be said about them,” said Bruce E. Fein, a constitutional scholar at the American Enterprise Institute. “If they think public opinion is going against them, they will change their opinions over a period of time.”

Among other things, the Administration has asked the justices to:

--Invalidate a voluntary agreement between school officials and unions in Jackson, Mich., to lay off white teachers with more seniority than blacks when necessary to maintain faculty racial balance (Wygant vs. Jackson Board of Education, 84-1340).

Argues Against Quotas

The Justice Department, saying that such agreements violate the equal protection clause of the Constitution, argues that layoff quotas should not be imposed when there is no evidence that blacks had been personal victims of discrimination. The department wants the court to expand a ruling issued last term, in a case involving firefighters in Memphis, that bars judges from ordering public employers to violate seniority pacts by firing whites to protect blacks.

Civil rights groups say that voluntary agreements, aimed at maintaining racial balance, are permitted by the Constitution, even if there are inroads on seniority. A decision striking them down, they say, would greatly undermine employment gains by minorities.

--Take the unusual step of reversing their 1973 ruling in Roe vs. Wade, which established a qualified constitutional right to abortion.

The Administration, asserting that the decision was not based on constitutional principles, says the states should be free to restrict or prohibit abortions that are not necessary to protect the life or health of the mother.

At issue are procedural restrictions on abortion in Pennsylvania and Illinois that were invalidated by federal appeals courts. Both cases (Thornburgh vs. American College of Obstetricians and Gynecologists, 84-495; Diamond vs. Charles, 84-1379) are beset by technicalities that could sharply limit the scope of any ruling by the court. Most authorities, including some Administration officials, do not expect the justices to reverse their landmark ruling.

--Reverse a ruling by the Washington Supreme Court that upheld the state’s denial of vocational benefits to a blind college student preparing to become a minister (Witters vs. Washington Department of Services for the Blind, 84-1070).

The Administration says that the state court decision could jeopardize federal aid, including benefits under the GI Bill, to students preparing for church-oriented careers. State officials, backed by civil libertarians, argue that the state cannot be forced to spend tax dollars to directly support religion.

--Rule that a high school student prayer group in Williamsport, Pa., is entitled to hold meetings on campus if other groups are permitted to meet there (Bender vs. Williamsport School District, 84-773). The justices held in 1981 that student religious groups at public colleges were entitled to use school facilities, but they have not decided whether younger, more impressionable students might believe that such action represents official promotion of religion.

The Administration says that providing for such use does not impermissibly “entangle” government with religion. A court ruling against the Administration would call into question the constitutionality of last year’s federal Equal Access Act, which bars public secondary schools receiving federal aid from denying access to student groups because of their “religious, political or philosophical” nature.

‘Significant Case’

“This is a terribly significant case,” said Jesse Choper, dean of law at the UC Berkeley and an expert on church-state issues. “If the court says schools may or must allow religious groups to use facilities so long as it allows others, it could open a wedge for substantial religious exercises in public schools.”

If school officials must grant “equal access,” Choper said, they may well be asked to allow religious symbols to be posted next to state flags or the Ten Commandments to be displayed next to the Magna Charta.

The court is also scheduled to rule in two important elections cases--one involving political gerrymandering, the other newly enacted provisions of the federal Voting Rights Act.

The justices will review a Republican-designed reapportionment plan in Indiana that left Democrats with only 43% of the seats in the state House of Representatives, even though they received 52% of the overall vote. The decision (Davis vs. Bandemer, 84-1244) could have considerable impact on a Democratic plan in California, where Republicans received more congressional votes than Democrats in 1984 but won only 18 of the state’s 45 House seats.

Voting Rights Case

In the voting rights case, the court will examine a 1982 amendment that made it easier for black voters to challenge legislative redistricting as discriminatory. At issue is a North Carolina plan in which black candidates made some gains in the state legislature, but not in proportion to their number of voters (Thornburg vs. Gingles, 83-1968).

The Administration says a federal court finding that a state redistricting plan discriminated against blacks went too far by construing Congress’ intention as to guarantee “safe seats” and “proportional representation” for blacks. The Republican National Committee, Senate Majority Leader Bob Dole (R-Kan.) and nine other members of Congress filed a brief opposing the Administration.

The ability of minority defendants to challenge trial and grand jury procedures will be at stake in three key cases. At issue is:

--Whether a black defendant in Kentucky is entitled to a new trial because the prosecutor used peremptory challenges--which may be exercised by both sides to remove jurors without cause--to remove all prospective black jurors (Batson vs. Kentucky, 84-6263).

--Whether a black defendant facing the death penalty in Virginia for murdering a white jewelry store proprietor during a robbery has a constitutional right to question prospective jurors about their racial views (Turner vs. Sielaff, 84-6646).

--Whether the murder conviction of a black defendant must be automatically overturned because blacks were excluded from the Kings County, Calif., grand jury that indicted him 23 years ago (Vasquez vs. Hillery, 84-836).

Death Penalty Challenge

A broad constitutional challenge to the death penalty, based on race, could come before the court this term if it agrees to hear a pending case from Georgia (McCleskey vs. Kemp, 84-6811). Capital punishment foes, contending that the death penalty is being administered unfairly, cite statistics showing that defendants in Georgia who murder whites are more likely to be sentenced to death than those who murder blacks.

Such statistical disparities have emerged in studies of other states. “This case could be the justices’ ‘Tar Baby,’ ” said Barry Goldstein, an attorney for the NAACP Legal Defense and Education Fund. “If they agree to hear it, they will be deep into capital punishment.”

Two cases involving freedom of the press could affect the ability of news organizations to defend against libel suits. One involves the Philadelphia Inquirer’s challenge to a Pennsylvania law that places on libel defendants the burden of proving that defamatory statements against private figures are true. The newspaper wants the court to rule that the First Amendment requires the plaintiff to carry the burden of proving the statement false (Philadelphia Newspapers vs. Hepps, 84-1491).

The other case could determine whether a public figure, before taking a libel charge to trial, must be able to show that there is “clear and convincing evidence” that a defamatory statement was published with the knowledge that it was false or with reckless disregard for the truth (Anderson vs. Liberty Lobby, 84-1602).

And, in a novel free speech case, the court will decide whether the California Public Utilities Commission may force Pacific Gas & Electric Co. to include political messages from a utility consumers’ group in the company’s monthly billing envelopes (PG&E; vs. PUC, 84-1044).