Court at the Crossroads

By Evan Thomas

COVER STORY

The 1984 election may chart the future course of American justice

In the white temple it is always quiet. No lobbyists or reporters hover about the paneled chambers; tall bronze gates seal off the cool marble passageways from the public. The black-robed Justices emerge onto the high bench only to hear the arguments of deferential lawyers, and then vanish again behind a thick velvet curtain. They deliberate in secret, insulated and remote from the hurly-burly of American politics.

In principle, the Justices of the U.S. Supreme Court do not write laws, they merely apply them. They "breathe life, feeble or strong, into the inert pages of the Constitution and of statute books," wrote Justice Felix Frankfurter.

Yet, as Constitutional Lawyer Floyd Abrams notes, "it matters who does the breathing." The Justices unavoidably bring their own personal values and political philosophies to the bench. In modern times, they have not hesitated to pass judgment on such basic moral issues as abortion and the death penalty. Indeed, over the past three decades, the Brethren, as the nine Justices are still called even though a woman has joined their ranks, have given such vibrant life to the constitutional guarantees of equality and individual liberty that American society stands transformed.

Though the Supreme Court does sometimes "follow the election returns," the Justices more often follow the dictates of legal precedent or their own consciences. The public's only real influence on the high court comes through its power to elect Presidents, who appoint the Justices, and Senators, who confirm them. Once a Justice enters the court's sanctum, he can stay for life.* The high court that begins its traditional nine-month term this week is a gerontocracy: five of the nine Justices are 75 or older. Not since Franklin Roosevelt railed against the Nine Old Men almost 50 years ago have the Justices been so aged (see box).

As it did eventually for F.D.R., the inevitability of death and retirement on the high court offers a historic opportunity for the winner of the 1984 presidential election. He will almost surely fill not one but several vacancies. Assuming that the appointees are relatively young, the next President could set the Supreme Court's course through the end of the century.

After a period of intense liberal activism under Chief Justice Earl Warren in the '60s, the court drifted under Chief Justice Warren Burger in the '70s, neither truly liberal nor conservative but divided and unpredictable. Decisions often turned on one vote. But since the appointment of Sandra Day O'Connor by President Reagan in 1981, many experts have begun to discern a rightward tilt. "There is a trend, but it is a slow oozing, a step-by-step process, and not a leap," says University of Chicago Law School Professor Philip Kurland. Agrees A.E. Dick Howard, a professor of law at the University of Virginia: "The 1984 Burger Court may be the conservative counterpart of the 1962 Warren Court--the year it turned the corner. A swing to the right has been in the works for a decade, but the momentum has quickened in the most recent term." Even several of the Brethren acknowledge the shift. Last month Justice Harry Blackmun told a private gathering at the Cosmos Club in Washington, B.C., that the court is "moving to the right," going "where it wants to go ... by hook or by crook."

If Ronald Reagan is re-elected and the court loses either of its two aging liberals, William Brennan and Thurgood Marshall, the conservative drift could become a sea change. The right to abortion, affirmative action for blacks and women, the ban on school prayer, many procedural safeguards for criminal suspects and free-speech rights would be vulnerable to weakening, if not outright reversal. Says University of Minnesota Law School Associate Professor Daniel Farber: "We could basically end up with the law looking a lot like it did before 1954. We could expect a much more conservative court, a Warren Court in reverse."

Democratic Candidate Walter Mondale is quick to raise this specter. "Don't let Mr. Reagan get his hands on the Supreme Court!" he shouted at the N.A.A.C.P. convention. Appearing at George Washington University last week, Mondale declared, "This election is not about Republicans sending hecklers to my rallies. It is about Jerry Falwell picking Justices for the Supreme Court." (The Fundamentalist preacher had earlier boasted that "we" will get three to five high court appointments.) The line drew a prolonged standing ovation for Mondale and a "We want Fritz" chant from the students. But the Democratic candidate usually makes an issue of the court only before liberal audiences, presumably because he fears it will not play well with more politically mixed crowds. The President has remained mum about his plans for the court, but the Republican platform calls for the appointment of Justices who "support traditional family values and the sanctity of innocent human life."

Reagan would certainly try to choose conservatives, just as Mondale would surely attempt to pick liberals. With both Brennan and Marshall nearing retirement, Mondale would need a whole raft of appointments to revive the liberal activism of the Warren era. More likely, he would only be able to prop up the court's aging left wing. The court as a whole would continue to drift, advancing here, trimming back there.

Whoever is elected, the future direction of the court cannot be predicted with certainty. Justices have been known to rudely surprise the President who appointed them. Theodore Roosevelt, for example, expected Oliver Wendell Holmes to uphold his trust-busting legislation. When Holmes disappointed him, Roosevelt exclaimed, "I could carve out of a banana a judge with more backbone than that!" Dwight Eisenhower had no reason to think that Warren and Brennan would turn out to be flaming liberals; Ike later regretted Warren's appointment as his worst mistake. "People change on the court," says Dennis Hutchinson of the University of Chicago Law School. "They're not cookie-cutter ideologues."

The Supreme Court was last a major election issue when Richard Nixon campaigned against the activist Warren Court in 1968, vowing to appoint Justices who would "interpret the Constitution strictly." Within three years, Nixon had four openings to fill, including that of Chief Justice (Warren stepped down at age 77 in 1969). Pundits proclaimed a "Nixon Court" under Burger, the new Chief Justice, and waited for a veer to the right.

It did not come. The Burger Court cut back in some areas, notably the rights of criminals, but went much further than the Warren Court in others. It allowed publication of the Pentagon papers, generally upheld affirmative action, made sex discrimination unconstitutional, permitted forced busing in school-desegregation cases and, most startlingly, gave women a constitutional right to abortion. The last decision was written by Blackmun, a Nixon appointee who until then had been considered a meek, go-along conservative. As if to underscore their independence, the Justices unanimously ordered Nixon to turn over his incriminating White House tapes to the special prosecutor during Watergate.

The Burger Court has been just as activist as the Warren Court, willing to second-guess other branches of Government and read new meaning into the Constitution. But unlike the Warren Court, which had a clear moral vision, especially toward the havenots, the Burger Court has lacked any coherent overarching theme. Says Duke University Law School Professor William Van Alstyne: "Many cases are just a muddle. The legal tests being developed now are as complicated and picayune as the Internal Revenue Code."

The court lacks "a great articulator" in the mold of Holmes or Louis Brandeis, says Federal Judge Simon Rifkind. Burger has not emerged as a strong voice. Courtly and white-maned, almost regal in appearance, he seems more comfortable with his ceremonial and administrative duties than at deciding cases. At the court's weekly conferences, he sometimes strikes other Justices as ill prepared and indecisive. When Burger changed his vote repeatedly in one case, Justice Byron White reportedly threw down his pencil and declared, "Jesus Christ, here we go again."

Says Steven Reiss of New York University Law School, a former clerk for Brennan: "Calling this the Burger Court is a complete misnomer. He is the least analytical and the least astute, and he has the least time for the substantive work of the court." Burger has irked some of his colleagues, who suspect that he has used his power to assign the written opinions of the court to reward his friends and punish his enemies.

Strong-willed jurists, pent up together for decades, inevitably feud. Earlier courts were riven by fierce ego and philosophical clashes, like the long-running one between William Douglas, an unabashed activist, and Felix Frankfurter, apostle of "judicial restraint." By comparison, the Burger Court is a pretty tame place. "This court is not characterized by the struggle of titans," says Virginia's Howard. The current Justices are perfectly civil to one another.

But there is little collegiality. "It's not like you walk into a room and four of them are laughing together about a baseball game," says a former law clerk for Brennan. "They walk to conference arm in arm, but during the week they don't pal around together." Justice Lewis Powell calls the Brethren "nine one-man law firms." Says Blackmun: "There is very little humor."

Aside from a weekly Friday conference, the Brethren usually communicate in writing. Memos ("letters," in quaint court jargon) are exchanged, as the Justices probe one another for the parameters of a decision. The final opinions are longer and more heavily footnoted than in the past. Too often they are written by clerks, young lawyers with brilliant academic records who serve a one-or two-year term with a Justice. (Clerks have proliferated in the past two decades. Until the late 1940s, Justices usually had one clerk each; now they are permitted four, although Justice John Paul Stevens hires only two.) In the names of their Justices, clerks tend to quibble over small points--a "battle of footnotes," scoffs Blackmun. Says one former clerk: "It's a heady experience. Every footnote you write, you think, 'Man, oh, man, this is law.' "

The Justices are too busy for much leisurely conversation. Their work load has steadily increased as Congress has passed more and more complex legislation and the court has expanded its reach. (Lawmakers often pass the buck by writing vague laws, leaving it up to judges to decide what is meant.) The court hands down about 185 written decisions a year, and it is asked to decide an overwhelming 5,000 cases annually, up from 1,000 at the beginning of the century.

Many of those cases do not call for ringing declarations but rather for nuance and compromise. In fact, it can be argued that the court's tendency to be pragmatic is in many ways a virtue. The Warren Court established broad principles, but it left some very difficult dilemmas. For example, it made an important legal breakthrough by striking down racial barriers in the landmark school-desegregation case of Brown vs. Board of Education in 1954. But the Burger Court was faced with a trickier question 24 years later: Is it legal to discriminate against whites to remedy the effects of past discrimination suffered by blacks? Perhaps it is not surprising that the court was unable to agree on a majority opinion, and split three ways in Regents of the University of California vs. Bakke (1978). The result of the case: while state universities may not use explicit racial quotas, they may consider race as a factor in admitting students.

Lacking a dominant conservative or liberal wing, the Burger Court is often guided by votes from its centrist members. The court's equilibrium resembles that of a basketball team delicately balanced between passers, shooters and rebounders: one substitution could profoundly alter the character of the group. It matters as much who steps down as who is appointed, since a new conservative Justice would have far more impact if he replaced a liberal than if he took over for a fellow conservative. Here is the court line-up at the moment:

Brennan, 78, along with Chief Justice Warren, was responsible for assembling the court's liberal majorities of the '60s. Warm and outgoing, he is the most open Justice on the court; his detailed notes on the court's weekly conferences on cases are made available to all the Justices' chambers. On occasion, through patience and guile, Brennan can still patch together enough votes to achieve a liberal result. Last term, for example, he assembled a 5-to-4 majority to strike down a law banning editorial comment by publicly funded broadcasters. Far more often, though, Brennan finds himself in dissent. A foe of the death penalty, he is depressed when his Brethren refuse to stay an execution. "The conferences about death cases are very painful," says a former Brennan clerk. His assistants dread calling the Justice, an early-to-bed, early-to-rise man, late at night with the news that another inmate has died. But despite his estrangement from the court majority, Brennan is in no hurry to retire. Last year he was remarried, to his secretary of 26 years, and now is said to be in a generally optimistic mood.

Brennan's only dependable ally is Marshall, 76, who is truly angry about the court's direction. In a speech last month, he charged that his colleagues had "trivialized" the rights of criminals by regarding those rights as mere technicalities. Overweight and afflicted with a heart condition, Marshall is the least healthy Justice. He does not overtax himself; on some afternoons he can be found in his chambers chuckling as he watches the television show The People's Court. He delegates heavily to his clerks who can predict his fixed views. Marshall is said to be determined to outlast Reagan.

The leader of the court's conservative wing is William Rehnquist, 60, the court's most self-consciously literate opinion writer. Philosophically, he has been too far to the right to dominate the court, but he sometimes manages to win over a majority with his legal acuity and personal amiability. A chronically painful bad back does not seem to have dimmed his humor. Columbia University Law School Professor Vincent Blasi calls him "the master tactician of the right, one hell of an in-fighter," but other court watchers say that Rehnquist is still more concerned with his own ideological purity than with coalition building.

Rehnquist can usually count on the votes of Justices O'Connor and Burger, both social friends as well as con-servatives-in-arms. O'Connor, 54, has turned out to be almost everything that President Reagan hoped for when he made her the first woman Justice. She is a strong conservative (except, not surprisingly, about sex discrimination), who has voted with Rehnquist on nearly all of the cases that were decided by a 5-to-4 vote A hard worker who still manages to make the Washington social circuit, she is maternal to her clerks but a tough questioner of lawyers arguing before the court.

Burger is somewhat unpredictable but he tends to uphold traditional American values. "He likes cases involving God, motherhood, apple pie and Chevrolets," says a former clerk. An antique collector and wine connoisseur, he is formal but kindly and solicitous with court employees. His one real passion as an administrator appears to be reform of the nation's prisons, though as a jurist he is unsympathetic to constitutional protections for prisoners; last term he voted for a ruling that prisoners have no Fourth Amendment rights against unreasonable searches and seizures in their cells. Burger, 77, often complains of overwork, but he is expected to remain Chief Justice at least long enough to preside over the celebration of the 200th anniversary of the signing of the Constitution in 1987.

The balance of power rests with the four Justices in the court's shifting, fluid center. Stevens, 64, appointed by Gerald Ford in 1975, is an iconoclast who likes constantly to question accepted legal doctrine. He has drifted somewhat to the left but is an outspoken critic of each wing of the court, in both his opinions and public utterances. Last term he took the unusual step of reading aloud from the bench his dissent from the court's ruling on prison inmates' rights. Stevens bitterly accused his colleagues of violating "any civilized standard of decency." Such frankness has not won him friends among the Brethren Says a former Burger clerk: "The Justices may squabble among themselves, but they don't go telling the neighbors."

Justice Blackmun, 75, is a dogged worker who agonizes over ethical and moral issues in major cases. He is deceptively bland, a bookish man with an enormous capacity for work. He is at his desk by 7 a.m., eats breakfast with his clerks at 8, and does not leave until 8 at night When Blackmun first came on the court he was known as Burger's "Minnesota Twin," since he grew up with Burger in St Paul and seemed to follow the chiefs lead docilely. But after two years, Blackmun began to go his own, more liberal way, and Burger never forgave him. Court insiders say that the chief now assigns Blackmun boring opinions as punishment. Blackmun told the Cosmos Club audience last month that he was "never so tired" as at the end of last term and that the job of Justice "is a rotten way to earn a living." Blackmun predicted that there are "bound to be" vacancies over the next four years. Many court watchers think his seat will be among them.

Justice Powell, 77, who was expected to stay on the court for no more than ten years, has now served twelve. Shy and gentlemanly, a former partner in an old-line Richmond law firm, he is personally conservative but not an ideologue. He has tried to be a careful and fair balancer of competing concerns. It was Powell who wrote the swing opinion striking down quotas but upholding affirmative action in the Bakke decision.

Justice White, 67, a former pro-football running back who outmuscles his clerks at pickup basketball games in the court's gymnasium, was long known as a careful jurist who heeded precedent and avoided substituting his personal views. He has the intellect and force to be a natural leader, but he keeps his own counsel, rarely opening up to his colleagues or even his clerks. Lately White seems to be moving to the right. He authored a series of conservative decisions last term on procedural rights for criminals, affirmative action and free speech. White voted with the conservative wing three-quarters of the time in close cases and was in the majority in 20 of 26 cases decided by a 5-to-4 vote.

If the fragile center crumbles or the conservatives get a clear majority through appointments, the Brethren may be of a mind to topple some Warren Court landmarks and perhaps narrow some of the earlier rulings of the Burger Court. The key areas to watch:

Abortion. No Supreme Court decision galls the New Right more than Roe vs. Wade, the 1973 ruling that gave women a constitutional right to abortion through the first two trimesters of pregnancy. It is one of the precedents most in jeopardy of reversal if Reagan appoints conservatives to the court. Says Constitutional Lawyer Abrams: "The Justices struggled terribly over Roe vs Wade, as they ought to have. I fear a Reagan Court would not struggle at all. They might simply reverse it."

Two Justices now on the court, White and Rehnquist, dissented in Roe Burger voted with the majority, but is now said to be uncomfortable with the court's decision and would like to find some way at least to water down its sweeping impact O'Connor is a likely vote against abortion The staunchest defenders of the decision--Brennan, Marshall and Blackmun--are all at least 75 years old. "All of our guys are the old men," says Nanette Falkenberg, executive director of the National Abortion Rights Action League. The court, it would appear, is already primed for a switch; a single appointment might be all the shove that it needs. But even for a determinedly conservative court, reversing Roe would be a momentous step. Since so many women have relied on the decision, says Columbia's Blasi, to overturn it "would be Prohibition all over again."

Still, there are ways to trim back Roe without reversing it. Blackmun's majority opinion in Roe ruled that while women a right to "personal liber ty," the fetus has no rights its own until it can live outside the womb. The decision relied heavily on medical evidence that the fetus was not viable until about the seventh month of pregnancy, the third trimester. But recent advances in in fant care challenge that decade-old assumption. "It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future," Justice O'Connor wrote last year. "The court would not have to go against precedent," says Falkenberg. "It could simply say that the state had a compelling interest in protecting the fetus at an earlier stage." Some legal experts believe the court would prefer not to re-examine advances in medicine constantly and would decide instead that it should not be in the business of determining when life be gins. If that happens, the court could reverse Roe and leave it to state legislatures to decide whether to permit abortion.*

Religion. The court is "winding up to permit a lot more religion in public life," says Arizona State University College of Law Dean Paul Bender. Observes Virginia's Howard: "For 15 years, the court has been trying to water down the strict separation of church and state." During the past two terms, the court has sought in its opinions to "accommodate" religion in state-supported activities as long as the practice does not represent a "real danger of establishment of a state church." For this reason, in a decision widely regarded as a bellwether, the court earlier this year allowed Pawtucket, R.I., to use public funds to erect a nativity scene as part of a downtown Christmas display. The court has upheld laws that have a "secular purpose," like promoting education, but advance religion as a side effect. Many court watchers expect the Justices this term to uphold a "time-sharing" program in Grand Rapids that sends public-school teachers into parochial schools for remedial programs.

The hottest church-state issue turns on a landmark 1962 decision, Engel vs. Vitale, in which the Supreme Court prohibited organized prayer in public schools as a violation of the First Amendment ban on "establishing" a state religion. Since then, Fundamentalists have agitated for a constitutional amendment permitting school prayer, and many local schools have simply ignored the court ban. Now many experts believe the Justices will look for a compromise. They will have an opportunity this term when they consider the constitutionality of an Alabama law that permits a moment of silence each school day for "meditation or voluntary prayer."

Criminals' Rights. In the 1960s, the Warren Court vastly expanded the rights of the criminally accused and thereby provoked a torrent of criticism accusing the court of hamstringing local police. The Burger Court has chipped away at some safeguards, and may be building to a major reversal. The most likely target is a favorite law-and-order bugaboo, the exclusionary rule, which requires judges to throw out evidence in a criminal trial that police obtained in violation of the suspect's constitutional rights. The rule is designed to deter police from strong-arm tactics. But its occasional effect is to exclude evidence vital to the prosecution's case, so that a guilty defendant goes free on a "technicality."

Last term the court carved out a limited "good faith" exception to the rule: if police "reasonably rely" on a search warrant given them by a magistrate, it does not matter if the warrant is in some way defective (misdated, say, or not specific enough). Court experts say that the addition of two or three conservatives would accelerate the assault on the exclusionary rule. Says Bender: "Very quickly there would be a general good-faith exception leading to, for all practical purposes, no exclusionary rule at all."

Others expect the court to keep shooting holes in the Fourth Amendment guarantee against "unreasonable searches and seizures." Already the Justices have given police more freedom to stop passengers in airports, inspect open fields for drugs, seize evidence in "plain view" and search automobiles. But experts predict that the court will not touch the most basic safeguard, the right to counsel, and doubt that it will greatly trim back the Miranda decision, which requires police to inform suspects of their rights to counsel and against self-incrimination.*

Civil libertarians are predictably gloomy about the trend in criminal-rights cases. Michigan Law Professor Yale Kamisar believes that the court is caving in to public fears of crime, especially drug-related offenses. Particularly unpopular is the exclusionary rule, which is often used to throw out drugs illegally seized by police, thus letting many dealers go free. "The Supreme Court has become the people's court," says Kamisar. "The Justices don't understand that the whole point is to protect minority interests." Not just criminals stand to lose, he adds. The court this term will consider under what circumstances public high school students can be searched by school officials.

Affirmative Action. No matter how conservative it becomes, the Supreme Court is not about to return to the pre-Brown vs. Board of Education era and permit the state to discriminate against racial minorities. But what the court might be willing to do to remedy past discrimination is another matter entirely.

In the past two decades, either on their own accord or at the prompting of the courts, government agencies, schools and private businesses have tried to take affirmative action to provide jobs, educational opportunities and government contracts for minorities. The rub is that these plans sometimes discriminate against whites. While striking down explicit quotas in Bakke, the court has generally backed affirmative action. But the Justices are "nervous about it," says Virginia's Howard.

The uneasiness is beginning to surface in court opinions. Last term the Justices ruled that job seniority took precedence over court-ordered affirmative action when the city of Memphis laid off fire fighters. The language of the opinion appeared to go further toward embracing a view urged by the Reagan Justice Department: that in most cases only individual victims of proven discrimination should be compensated by back pay or new jobs. Scoffs Harvard Law School Professor Laurence Tribe: "That is a formula for doing nothing." Individual discrimination is difficult and costly to prove; under most affirmative-action plans, whole classes of minorities get preference over whites in hiring and advancement, regardless of whether they have been personally discriminated against. The rationale is that drastic steps are needed to overcome centuries of racial bias. If the court follows its own reasoning in future cases, sweeping affirmative-action plans could be struck down. As a result of the Memphis case, said Blackmun in his Cosmos Club talk, "affirmative action was pretty well interred."

Free Speech. The Burger Court has been taken to task on editorial pages for being antipress in First Amendment cases, but in fact the record is mixed. The court has generally protected the press's right to print the news, while refusing to give reporters special protection for news gathering. Thus it has struck down prior restraints on publication but refused to give reporters a First Amendment right to shield sources.

Legal experts wonder, however, how the First Amendment will fare when pitted against national-security concerns. In recent years the court has been deferential to Government claims, citing national security last term to uphold a Government ban on travel to Cuba. Liberals fear that in time of political crisis, when freedom of speech and other constitutional safeguards are most needed, the court will not stand firm. "The McCarthy era would be nothing compared with what we could see," warns First Amendment Lawyer Abrams. The prospect of Reagan appointees is not reassuring on this score. The President has said that the publication of the Pentagon papers was "no different from receiving stolen property and selling it for a profit."

Economic Rights. The Warren Court vigorously enforced the antitrust laws in an effort to break up economic concentration. The Burger Court has backed the Reagan Administration's view that the real antitrust test should not be size but economic efficiency. Some experts think that the Burger Court would not have ordered the breakup of A T & T, which was the result of a settlement in a federal district court.

With a few Reagan appointees, the court might well be sympathetic to Administration efforts to loosen pollution standards, open up national parks to economic uses and generally unfetter market forces. A harbinger: last term the court upheld an Administration policy designed to give industry greater flexibility for growth without interference from antipollution laws. The Justices chastised an activist federal appeals court, which had struck down the plan, for meddling in policymaking.

Change is rarely sudden on the Supreme Court. Administrations may shift overnight, and with them national policy, but the Justices, whatever their political leanings, are supposed to prize continuity and predictability. "The most important thing we do," wrote Justice Brandeis half a century ago, "is not doing." Brandeis believed that the court should apply established legal principles to the facts of the case at hand, and not reach out to make new law. Conservative Justices at least pay lip service to this ideal. Burger, O'Connor and Rehnquist, for instance, preach adherence to federalism, arguing that the federal courts should try to avoid overruling state courts and legislatures.

When it suits them, however, conservatives and liberals alike do not hesitate to ignore the lofty goal of judicial restraint. Last August, Stevens publicly attacked his colleagues for overstepping their authority. The court "leaped" and "grasped" and "went out of its way" to write new law, he told an American Bar Association audience in Chicago. He noted pointedly that "members of the court who are often described as 'conservative' were casting judicial restraint aside in an effort to move the law to the right."

Since much of what the court has done in the past 40 years is decidedly liberal, the key question now is whether the court will be willing to overrule itself. The high court is historically loath to reverse precedent. The court authority depends on respect for its rulings; the Justices know that nothing makes them seem more fallible than second-guessing their own judgments. "The one thing the court really cares about is its own power," says Chicago's Hutchinson.

At the same time, the court is not insensitive to the public mood. There are signs that several of the Justices feel they have gone too far beyond the national consensus in some areas and need to retrench. Formerly controversial breakthroughs, such as Brown vs. Board of Education and Miranda, have withstood the clamor and gained acceptance. Others, however, particularly those involving school prayer, abortion, affirmative action and search and seizure, still stir passion. "It wouldn't surprise me if Justice White, for example, now feels those decisions backfired and the court should back off," says Columbia's Blasi. He suspects that both White and Powell, two men of the center, are "very, very worried over the idea of Supreme Court decisions being portrayed as election issues."

Precedent need not prevent change. "The Justices know they can undermine just as effectively by interpretation as by actual reversal," says Sidney Zion, a liberal court commentator. The signals sent to the lower courts by the language and tone of court opinions are as important as rulings, which are often narrowly limited to the facts of a case. On the exclusionary rule, for instance, "the Supreme Court needs to hold back the natural instincts of lower-court judges who want to admit all incriminating evidence," says Kamisar.

Of course, the lower federal courts may choose to buck the Supreme Court. Lower-court judges have considerable discretion to shape remedies in civil rights cases: busing plans, affirmative action, even taking over the management of state prisons and mental institutions. Courts of appeal, including the Supreme Court, generally do not second-guess findings of fact by trial-court judges. "A clever district-court judge can do a lot by finding a set of facts and calling it equitable," says Howard. "They can be skillful in creating a record to effectively insulate themselves from Supreme Court review." t the moment, many federal judges tend to be more liberal than the Supreme Court Justices.

Jimmy Carter appointed 265 lower-court judges, including 41 women and 38 blacks, while Reagan has had only 150 such openings to fill (his selections so far include 14 women, two blacks). Courts-of-appeals judges appointed by Democratic Presidents outnumber G.O.P. appointees 70 to 58, though Reagan still has twelve unfilled appointments with which to close the gap. Some appeals courts are completely out of sync with the top court. The Ninth Circuit in San Francisco, for example, had 27 cases reviewed by the Supreme Court and only one affirmed. Moreover, some state supreme courts have begun to interpret their own constitutions more liberally than the U.S. Supreme Court does the federal Constitution. For instance, in 1973 the U.S. Supreme Court found no federal constitutional requirement for equal funding of school districts within a state. But the same year, the New Jersey Supreme Court interpreted its state constistution to mandate equal funding for local school districts. The New Jersey requirement will stand. A state is free to confer greater rights under its own constitution than the Supreme Court finds in the federal Constitution.

If Reagan wins reelection, much depends on what kind of conservative he chooses for the bench. A judicial conservative, believing in restraint, might not like the abortion decision, but he would regard it as binding precedent. A political conservative worries more about results than the judicial process and might not hesitate to disregard the findings of his predecessors. On Reagan's list of appointees, both types of conservatives can be found (see following story). If Reagan picks ideologues, says N.Y.U.'s Reiss, "God knows what could happen. They could overrule anything they didn't like. They could rewrite constitutional law and history."

The Justices appointed by the election winner will have a chance not only to reorder the past but to shape the future. New constitutional dilemmas, like the ethical and moral complexities of genetic engineering, are beginning to wend their way to the high court.

Old ones are still unresolved, like the conflict between Congress and the Executive over which branch has the power to commit U.S. troops abroad. But no matter how technical or tortuous the case before them, the Justices can put their decision to the tests posed by Warren: "Is it fair? Is it right?"

The Constitution has stayed sturdy and relevant in large part because the Justices have been able to adapt it to what Jus tice Holmes called "the felt necessities of the time." Such a task is delicate, to be undertaken with reverence for established principle and the slow evolution of fundamental rights. If the court becomes a mere political instrument, it will lose its legitimacy; if the Justices become the blunt tools of the Presidents who appoint them their judgments will be just as transitory It is reassuring that, once ensconced in the high court, so many of the Brethren develop a higher loyalty. -- By Evan Thomas.

Reported by Kenneth W. Banta/New York and Anne Constable/Washington, with other bureaus

"Justices can be removed only by House impeachment and Senate conviction on charges of "treason, bribery, or other high crimes and misdemeanors." None have been. -- Every West European country permits abortion, at least after rape or to save the life of the mother. -- Ernesto Miranda was set free in 1966 when the Supreme Court overruled his conviction for rape and kidnaping because he had not been informed of his rights. Miranda was later retried by the state for rape, found guilty and sentenced to a maximum of 30 years in Arizona State Prison. Paroled in 1972, he was stabbed to death four years later in a card game in a Phoenix bar.

With reporting by Kenneth W. Banta, Anne Constable, other bureaus