Rehnquist Court’s First Term May Signal a Shift

The first term of the Rehnquist court, which begins today, could provide an early test of whether President Reagan has succeeded in giving the Supreme Court a tilt to the right.

In the next two months, the justices will consider cases on affirmative action, religion and the death penalty--issues that narrowly split the Burger court and could provoke even more strident controversy as staunch conservatives William H. Rehnquist and Antonin Scalia take their respective seats as chief and associate justices.

Among the questions that the forthcoming cases will address are: Is a public agency justified in promoting a woman over a man who has slightly better qualifications? Can a state require its public schools to give equal time to the teaching of “creation science” and evolution? Is the death penalty administered in a racially discriminatory manner?

Also awaiting action among nearly 1,200 appeals before the court are cases that test whether once-segregated school districts can call off desegregation plans, whether a state can require a “moment of silence” at the start of a school day and whether a minor seeking an abortion can be required to wait for 24 hours.

Many court analysts have suggested that Rehnquist will bring stronger philosophical leadership to the court than his predecessor, Warren E. Burger, and perhaps be more persuasive. Scalia, for his part, is expected to bring to the court a judicial philosophy that may prove more conservative than Burger’s in the long run.

Balance Not Altered

Yet, as many observers have noted, the elevation of Rehnquist and the addition of Scalia do not alone alter the political balance on the high court.

In recent years, the two solid conservatives--Burger and Rehnquist--have usually been joined by Justice Sandra Day O’Connor. They have been countered on the left by two equally consistent liberals--Justices William J. Brennan Jr. and Thurgood Marshall--who are frequently joined by Justice John Paul Stevens.

Justices Harry A. Blackmun, an appointee of President Richard M. Nixon, and Byron R. White, an appointee of President John F. Kennedy, have appeared to switch sides in recent years. Blackmun has become a steady liberal vote, while White has become a consistent conservative.

Last term, the National Law Journal noted recently, the court was closely divided on 69 cases. In 56 of those, Blackmun joined with the liberal side. White sided with the conservatives on 55.

Challenge Dismissed

This switch was highlighted in June when White, writing for a 5-4 majority, scornfully dismissed a challenge to Georgia’s sodomy law, saying it is “at best facetious” to call gay sexual activity a fundamental right protected by the Constitution. But Blackmun, speaking for the dissenters, said the case was actually a test of the “right most valued by civilized men, namely, the right to be let alone.”

The man in the middle continues to be Justice Lewis F. Powell Jr. Last year, the 79-year-old Powell cast the deciding vote in the court’s most controversial cases involving affirmative action, abortion and sodomy.

But Rehnquist, as chief justice, will do more than just vote. He will preside at the weekly conference meetings when the justices decide what to decide--sessions that could be significantly influenced by Rehnquist if he can summon his powers of persuasion, as many believe he will. Only four votes are needed to decide which cases the court will hear.

In the view of some observers, Rehnquist may be able to set the agenda for the court by focusing attention on cases he wants considered. For example, the court has a slew of appeals that question when police may stop a suspect and search him or his car for drugs.

Controversial Drug Bill

The House, in its controversial drug bill, sought to strengthen police powers in this area by saying courts may use evidence seized in such a manner if an officer operated with “a reasonable good-faith belief” that his actions were legal. This move is being blocked by Senate liberals.

Nevertheless, the Supreme Court may take the lead in expanding the definition of a “reasonable search” if Rehnquist, a hard-liner on criminal law, can persuade his colleagues to review more cases that pose this question. He may also seek to gain the four votes needed to decide whether New Jersey’s “moment of silence” at the beginning of the school day is legal or whether Illinois can put some limits on minors’ seeking an abortion.

The court also has before it plenty of tough cases that do not follow simple conservative-liberal lines:

--Can a company sue under federal antitrust laws to block the merger of two of its competitors? Monfort of Colorado Inc., a large beef packer, sued when two of its largest competitors sought to merge, and a federal appeals court blocked the merger as an antitrust violation. But the Justice Department is urging the Supreme Court to reverse the decision, saying that some mergers heighten competition rather than restrict it (Cargill vs. Monfort, 85-473).

Strip-Mining Issue

--Can a state stop the federal government from allowing strip mining on federal land? In this case, the federal land in question is in the Big Sur forest, five miles from the California coast. The state’s coastal commission is seeking to block a proposed strip mining operation by the Granite Rock Co., but the U.S. 9th Circuit Court of Appeals ruled that the mining operation could proceed. Attorneys for California are urging the Supreme Court to overturn that decision (California Coastal Commission vs. Granite Rock Co., 85-1200).

--Can an employer search the office of an employee without his consent? Officials of a state hospital in Napa, Calif., searched the office of a veteran psychiatrist there who was under investigation by the hospital director on a number of charges, including sexual harassment. The psychiatrist sued, and the U.S. 9th Circuit Court of Appeals ruled in his favor, concluding that he had “a reasonable expectation of freedom from government intrusion.” The Justice Department and California attorney general, seeking a reversal of the ruling, argue that an office is the property of the employer, not the employee (O’Connor vs. Ortega, 85-530).

Propaganda Label

--Can the government label foreign films as “political propaganda”? Atty. Gen. Edwin Meese III, acting under a 1938 law, labeled two Canadian films on acid rain and one on nuclear war as “propaganda” before they were distributed in the United States. California state Sen. Barry Keene (D-Benicia) sued the government to block this action, and a federal court agreed that the label is “a word of reproach.” The Justice Department wants this decision reversed, but the American Civil Liberties Union says it should be upheld because the government was using the law to restrict free speech (Meese vs. Keene, 85-1180).

--Can a school board dismiss a teacher with a contagious disease such as tuberculosis? No, a federal appeals court said, because hers was a “handicap” covered by federal anti-discrimination laws. The Justice Department has urged the court to overturn this decision, but the case has attracted wide attention mostly because it is seen as a test of whether victims of AIDS are similarly protected under the laws (School Board of Nassau County, Fla. vs. Arline, 85-1277).

Oral arguments in some of the most controversial cases will be heard in the next two weeks. On Wednesday, the justices will consider a major pregnancy discrimination case in which attorneys for California will argue that the state is justified in requiring employers to give pregnant women up to four months of disability leave.

On Oct. 15, the justices will consider death penalty appeals from Georgia and Florida in which the NAACP Legal Defense Fund, using statistical studies, will try to show that killers of whites get far harsher treatment than killers of blacks.

Next month, the court will hear two cases that test whether government agencies can promote blacks and women over more qualified whites as part of an affirmative action program.