Changes Seen if Court Gets New Conservative : Curbs on Abortions and Affirmative Action, Support for Aid to Private Schools Predicted

The replacement of retiring Justice Lewis F. Powell Jr. with a staunch conservative would probably lead to new restrictions on abortions, an undercutting of affirmative action, an endorsement of public aid to private schools and a bolstering of the rights of property owners, lawyers and court scholars said Sunday.

Powell helped to thwart the Reagan Administration’s conservative social agenda by frequently siding with court liberals to form narrow 5-4 majorities on a range of issues.

His replacement could shift the balance of power to the conservatives on these issues. And he or she could make a quick impact, if President Reagan nominates--and the Senate confirms--a new justice before the court’s new term begins in October.

‘Not Make the Law’

The Administration, in fact, hopes for just such a quick approval. On Sunday, Atty. Gen. Edwin Meese III, appearing on ABC-TV’s “This Week With David Brinkley,” said that this week or next week at the latest the Administration will submit to Congress a Supreme Court nominee “who would apply the law and interpret the law, not make the law.”

Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Senate Judiciary Committee, which will hold hearings on Powell’s replacement, said the process would proceed quickly if the Administration nominates “someone in Justice Powell’s mold.”

But Biden, interviewed on CBS-TV’s “Face the Nation,” warned that there would be “some controversy” if the Administration seeks a nominee who has a conservative predisposition on all the social issues.

The court already has agreed to hear cases involving an Illinois law requiring both parents of a minor to have 24-hour notice before their daughter can have an abortion, and a New Jersey law calling for a “moment of silence”--not overtly for religious purposes--at the start of the school day. Lower federal judges have struck down both laws as unconstitutional.

The Supreme Court will also consider a San Jose rent control ordinance that property owners say infringes on their rights to earn income. Although Powell sided with the court conservatives in ruling for property owners in the past month, his position on rent control was very much in doubt.

Powell’s departure is less likely to make a difference in some other areas, including criminal cases, where the conservative bloc already has firm control. Powell sided with 6-3 majorities in decisions earlier this year upholding the jailing of dangerous criminals while they await trial and giving police more leeway to make “honest mistakes” in searching the homes of suspected criminals.

However, on issues such as abortion, Powell’s replacement could have profound impact. “The right to safe and legal abortion has never been in greater jeopardy,” Kate Michelman, executive director of the National Abortion Right Action League, said in response to Powell’s resignation.

In the landmark 1973 case of Roe vs. Wade, the high court concluded that the Constitution contained an implicit “right to privacy” that also guaranteed the right to an abortion. That ruling struck down all state laws prohibiting abortions, and since then the justices have also rejected state laws regulating abortions.

Law Overturned

In 1986, for example, the court voted, 5 to 4, to strike down a Pennsylvania law that required women seeking an abortion to be given information about the procedure’s dangers. The liberal majority, including Powell, viewed the law as merely a disguised effort to dissuade women from ending their pregnancies.

Chief Justice William H. Rehnquist and Justice Byron R. White, contending that there is no constitutional right to privacy, have voted against abortion at every opportunity. Justice Antonin Scalia, appointed by President Reagan last year, expressed the same view before joining the court.

Justice Sandra Day O’Connor, appointed by Reagan in 1981, has not said directly whether she believes women have a legal right to abortion. She has, however, expressed reservations about the 1973 ruling and has voted to uphold efforts by states such as Pennsylvania to regulate abortion.

Appeals court judge Robert H. Bork, who is said to be the Justice Department’s first choice to replace Powell, has said in the past that he believes that the 1973 abortion decision was incorrect, but he has not said whether he would vote to overrule it now.

Abortion Opposition Seen

If nominated, Bork is also not likely to give the Senate Judiciary Committee his views on such issues as abortion. But no matter who Reagan nominates to fill Powell’s seat, many lawyers on both sides of the issue predict that he will join the four conservatives in the anti-abortion bloc.

“I think we will have a fifth vote to overrule Roe,” said Bruce Fein, a lawyer with the conservative Heritage Foundation in Washington and a former Justice Department lawyer. “They may not do it immediately, but I think it will happen.”

Steven Shapiro, associate legal director for the American Civil Liberties Union, fears the same. “My guess is that it will be a long battle, and they will chip away at it first,” he said. “It’s important to point out that abortion will not become immediately unlawful if Roe is overruled. It will go back to the state legislatures for them to decide.”

The impact of a new court conservative on affirmative action could be just as great. For a decade, the justices have split on whether laws prohibiting discrimination based on race or sex also forbid employers or universities to give preferences to blacks, Latinos and women.

Affirmative Action Votes

Powell was the key vote. He sometimes endorsed affirmative action when an employer or union had discriminated in the past. But he also rejected plans that caused “innocent” whites to be laid off to save the jobs of blacks with less seniority.

In February, with Powell casting the key vote, the court ruled, 5 to 4, in favor of a hiring quota for blacks to remedy an “egregious” history of discrimination by the Alabama state troopers.

And in March, the court gave its broadest endorsement of affirmative action, saying that the Santa Clara County Transportation Department could promote a woman over a more qualified man to bring more females into jobs held largely by men. In that 6-3 ruling, in which O’Connor deserted the conservatives to join the majority, the court said affirmative action plans were legal even if they did not remedy past discrimination.

On the issue of prayer in the public schools, Powell joined the 6-3 majority in 1985 that discarded an Alabama law calling for a moment of silence for “voluntary prayer.” The New Jersey law before the court in its next term makes no reference to prayer.

Aid to Private Schools

On the related issue of public support for private schools, the court has been deeply split during the last decade. Last year, for example, Powell joined four court liberals to throw out a program of federal aid for poor students in parochial schools.

“I think you can safely predict a court without Powell will be much more tolerant of public aid to private schools,” Fein said.

On other issues, court conservatives already held sway--often because of Powell’s support. Powell regularly sided with conservatives to limit--but not discard--the so-called Miranda rule, which requires police to notify suspects of their rights to remain silent and to consult a lawyer before questioning them.

A conservative replacement for Powell also would cement the high court’s support of the death penalty. “We didn’t win many death penalty cases, but when we did, it was because Powell was concerned for the defendant’s right to due process,” Shapiro said.

Crucial Fifth Vote

But even in the field of criminal law, Powell sometimes provided liberals with their crucial fifth vote. Earlier this month he voted with 5-4 majorities to reject a Maryland law letting a murder victim’s family tell the sentencing jury about the impact of the crime on the survivors, and to allow a witness to testify in her own defense after being hypnotized.

Liberal court observers know that Powell’s departure could be just the beginning. Among the court’s liberals, Justice William J. Brennan Jr., although in good health, is 81. Justice Thurgood Marshall celebrates his 79th birthday on Thursday, and Justice Harry A. Blackmun is 78.

By contrast, the court’s three most staunch conservatives are, on average, more than 20 years younger. Rehnquist is 62; O’Connor is 57, and Scalia is 51.