Ominous Move on Rights

One of the myths circulated by the Reagan Administration is that liberal judges tend to be activists, reaching out to make law and to inject themselves into every controversy that comes along, while conservatives can be counted on to practice something called judicial restraint. In nominating justices to the U.S. Supreme Court, President Reagan made almost a fetish of announcing that each espoused the conservative philosophy of judicial restraint.

Well, their restraint was short-lived. On Monday, President Reagan’s three high court appointees joined with William H. Rehnquist, the man the President promoted to chief justice, and Justice Byron R. White to announce that they will consider overturning a 12-year-old ruling that allows lawsuits against private citizens accused of racial discrimination.

What is more startling is that the five justices themselves initiated the move to reexamine the 1976 decision, not the parties to the current case that they ordered reargued. As Justice Harry A. Blackmun, one of the dissenters, complained, such activism “is neither restrained, nor judicious, nor consistent with the accepted doctrine of stare decisis. “ In fact, taking on an issue that was not raised by the parties to a dispute or by the lower courts smacks of the same kind of activism that brought criticism on the Warren Court.

To be sure, for the high court to reconsider a decision does not automatically mean that it will be overturned. But the court’s action does seem to leave the 1976 decision, Runyon vs. McCrary, on shaky ground. That’s a shame, because Runyon--which let black children shut out of all-white private academies in the South sue under a Reconstruction-era statute--has been an important tool for civil-rights lawyers. The precedent has been widely used to attack many forms of private discrimination and has been cited in at least 100 lower-court rulings.

What is mystifying is why the Supreme Court, always overworked, should want to rethink so recent a decision. Congress has made no move to correct the court’s interpretation of the 1866 Civil Rights Act. And the specific case before the court now, involving a North Carolina credit union teller suing her former employer for racial harassment under the 1866 law, could be settled on narrower grounds.

One possible conclusion is that the newly reconstituted Supreme Court has an agenda of its own. Justice White, who dissented in Runyon vs. McCrary, has never accepted the notion that the 1866 law, enacted to allow freed slaves to enter into contracts on the same basis as whites, meant to outlaw discrimination by private citizens. If he indeed has turned a majority to his point of view, the same majority that called for this unusual and unwise attack on established precedent, this may be only the first glimpse of the conservatives’ agenda for the court.