An Illness Ties Up the Justices

By Michael S. Serrill.

When the U.S. Supreme Court handed down a pair of eagerly awaited rulings last week, the results--two 4-4 deadlocks--were disappointing for all concerned. In one, the village of Scarsdale, N.Y., was appealing a lower federal court ruling that invalidated the town's ban on the display of a creche in a public park. In the other case, a federal court had thrown out an Oklahoma law that authorized the dismissal of public school teachers who advocate homosexual activity. The tie votes mean that the lower-court rulings stand, but the high bench's action has no value as a precedent. The difference between a decision and no decision in both cases was the absence of Justice Lewis Powell, who has just returned to the bench after missing five weeks of oral arguments while undergoing treatment of prostate cancer. Three other tie votes were also announced last week, and three additional cases were not decided when the high court took the unprecedented step of ordering new oral arguments in the same term on the same issues, apparently solely for Powell's benefit.

Why some cases were to be reargued while others were not remains a mystery, but one result was clear: much court work was done to little purpose. And there may be more such outcomes; Powell has missed oral arguments in 56 cases. His health and the eight non-results last week highlight anew the court's age. In the event of a vacancy, the Reagan Administration is ready with an updated list of prospective Justices. White House Counsel Fred Fielding told TIME last week that he has also constituted a small new committee to advise the President on Supreme Court nominations. There are only three members: Fielding, Attorney General Edwin Meese and White House Chief of Staff Donald Regan. "We don't expect a vacancy," said Fielding, "but we're prepared."

The Burger court is the second oldest in history, with an average age of 70, less than two years younger than the Nine Old Men who made Franklin Roosevelt miserable until they began leaving the court in 1937. The present high bench is "the first ever to have a majority of its members 76 or over," calculates Harvard Law Professor Laurence Tribe. Even the younger Justices have reached the outer edges of middle age. The youngest, Sandra Day O'Connor, celebrated her 55th birthday last week.

While such a heavy concentration of venerability on one court is unusual, 34 of the 102 Justices have continued past their 75th birthdays, including such luminaries as John Marshall, Roger Taney, Oliver Wendell Holmes and Louis < Brandeis. John Harlan, who retired in 1971 at the age of 72, became nearly blind at the end of his tenure, but "those last five years made him one of the greatest Justices in history," says Stanford Constitutional Scholar Gerald Gunther. On the other hand, Harlan's longtime colleague and adversary Hugo Black, who did not retire until just before his death at 85, seemed to decline. "The nicest thing you could say is that he was not as vigorous in his last years," says Columbia Law School Dean Benno Schmidt.

Schmidt, a former Earl Warren law clerk, notes pointedly, "Chief Justice Warren, as he was retiring, said several times he wanted to leave in good health to set an example for others to follow before their powers became impaired." But informing a failing Justice when to leave has always been a delicate matter. At the turn of the century, when one member of the court was designated to suggest resignation to the often befuddled octogenarian Stephen Field, the younger man eased into the subject by reminding him of a similar visit Field had once had to make to a senior Justice. "Yes!" cut in the cantankerous Field. "And a dirtier day's work I never did in my life!"

No one is suggesting that any of the current Justices are in their dotage. Byron White, 67, still plays a little basketball in the top-floor gym ("the highest court in the land"), while O'Connor goes there for aerobics. And everyone does a fair share of the mental exercise on the court. "There may be dreadfully reasoned or mistaken opinions," says William Van Alstyne of Duke University Law School, "but they can't be rationalized by the age of the Justices." Although most have complained about the heavy case load, there is little talk of retirement. "After all," quips University of Virginia Law Professor A.E. Dick Howard, "the job doesn't involve any heavy lifting." The most discussed possible resignation at the moment is inevitably that of Powell, 77. "He is not the kind of person who would allow this situation to go on indefinitely," Philip Kurland of the University of Chicago Law School says. "Unless he returns to full vigor, I expect his resignation at the end of the term."

As for the others 76 or older, Chief Justice Warren Burger, 77, has made clear his intention to preside over the U.S. Constitution's bicentennial celebration in 1987. Harry Blackmun, 76, keeps up an active schedule of public appearances and shows no sign that he is thinking about quitting. Court watchers have been noting for years that Thurgood Marshall, 76, is in poor physical shape, but he has remarked privately, "I was appointed for life and intend to serve out my term." William Brennan, who will be 79 in April, is the oldest of the Justices, but remains spry mentally and physically. Remarried in 1983, the Eisenhower appointee seems less limited by his years than his younger colleague William Rehnquist, 60, whose back problems send him home from the court many days by 3 p.m.

To change the balance on the court decisively, Ronald Reagan would have to name a replacement for Liberals Brennan or Marshall or sometime Liberals Blackmun or John Paul Stevens, seemingly in his prime at 64. During the 1984 campaign, both sides noted that the winner probably would join a short list of very fortunate Presidents--Washington, Jackson, Lincoln, Taft and Franklin Roosevelt--whom fate allowed to mold the court in their own images. For that reason, says Tribe, normally a critic of the Burger era, "I'm for mandatory life-support systems for the current court." But no such emergency intervention is necessary for the moment. The present high bench, with its fragile coalitions and its elderly Justices, seems set to go on, at least for the remainder of this term.

With reporting by David Beckwith/Washington