"A Slam-Dunk Decision"

By Richard Lacayo

After naming a Chief Justice and three Associates to the Supreme Court, Ronald Reagan can hardly complain that it is not to his liking. But last week the court proved again how frustratingly independent it can be, decisively upholding the special prosecutors who have bedeviled Reagan's second term. In the process, it also cleared the way for the upcoming trials of the Iran- contra Four: Oliver North, John Poindexter, Richard Secord and Albert Hakim. Says Michigan Democratic Senator Carl Levin, who sponsored the independent- counsel legislation: "It's a slam-dunk decision."

The prosecutors could have been the ones who got slammed and dunked. If the court had overturned the 1978 Ethics in Government Act, it would have reversed the perjury conviction of former Reagan Aide Michael Deaver, who was prosecuted by Independent Counsel Whitney North Seymour Jr. But what really had Washington holding its breath was the prospect that a reversal might put into question evidence collected by Independent Counsel Lawrence Walsh in the first months of his Iran-contra investigation, before he took a backup appointment from the Justice Department. The ruling also frees Prosecutor James McKay, who earlier obtained a conviction of former White House Aide Lyn Nofziger, to release the report on his investigation into Attorney General Edwin Meese III.

The court's 7-to-1 vote was a sweeping repudiation of the White House position that the constitutional principle of separation of powers requires an Executive free of nearly all constraint by the other two branches of Government. So much the worse that the ruling was written by Chief Justice William Rehnquist, the man Reagan had chosen for the court's top job. "I'm sure someone ((in the Administration)) is thinking the word ingratitude," says University of Virginia Law Professor A.E. Dick Howard. Asked about the ruling, Reagan only shrugged. "Nothing's changed," he said.

The decision came in the most obscure of the current investigations, the inquiry into whether Assistant Attorney General Theodore Olson gave false testimony to Congress in 1983 in a dispute concerning the Environmental Protection Agency. Olson, supported by the Justice Department, had argued that the law violated the separation-of-powers principle by providing for independent counsel to be chosen by a special three-judge court. The broad scope of special prosecutors' powers, he contended, made them "principal officers" that the Constitution says only the President may appoint. In January, a federal appeals panel that heard his case overturned the law.

But in his ruling Rehnquist noted that the law gives the Executive Branch a measure of control in the selection process, for instance, by allowing the Attorney General to decide when special prosecutors are required and whether to dismiss them for "good cause." For that reason, Rehnquist held, independent counsel is one of the "inferior officers" that the Constitution says Congress may allow department heads or judges to appoint.

The lone dissenter was Justice Antonin Scalia, who took the unusual step of summarizing his dissent aloud. In a lengthy argument that contained an acid reference to "our former constitutional system," he suggested that even the slightest diminution of Executive power by Congress is unconstitutional. If the Executive Branch cannot be trusted to investigate itself, he asserted, the voters and not Congress should remedy the situation.

The frustration in Scalia's tone was one sign of the ambiguous results of Reagan's effort to nudge the high bench to the right. In the term just ended, the Justices sent out mixed signals on everything from privacy rights to criminal law. Consider some of last week's other notable decisions:

-- In a major civil rights ruling that brushed aside Administration objections, the Justices decided, 8 to 0, that a lower court had been wrong in preventing a black former bank employee from using statistics to prove that she was the victim of racial discrimination in the bank's promotion practices. As a result, plaintiffs in employment discrimination suits may now point to the number of women or minorities at a workplace or in higher-ranking jobs as evidence that "subjective" employer judgments, like a supervisor's evaluations, had a discriminatory result.

-- The court, 6 to 3, upheld a Brookfield, Wis., city ordinance that forbids picketing of individual residences. Writing for the majority, Justice Sandra Day O'Connor said the law, which was passed after right-to-life demonstrators began picketing the home of a physician who performs abortions, serves the significant Government interest of protecting residential privacy. But at the same time, O'Connor distinguished the ordinance from a prohibition against "general marching through the neighborhood." The antiabortion group has vowed to do just that.

-- The Justices gave qualified approval to providing federal money to religious groups that counsel teenage girls against premarital sex and abortion. But they also found that some groups receiving the money had violated the separation of church and state by mixing religious doctrine into their counseling. Writing for a 5-to-4 majority, Rehnquist ruled that in such instances the solution would not be to overturn the law but to disqualify the particular groups.

Thus ended a record of decisions that left disquiet on right and left. "There's some kind of transition going on," says Ricki Seidman of liberal lobbying group People for the American Way. "There is a lot of fuzziness ^ around the edges." Says Daniel Popeo of the conservative Washington Legal Foundation: "We're looking for the Supreme Court to answer some very hard questions that have to be confronted directly."

The court may be more conservative when it returns in October. Justice Anthony Kennedy, who did not take part in many recent decisions, will be present from the start. Next fall the three most liberal members of the court, William Brennan, Thurgood Marshall and Harry Blackmun, will all be in their 80s. Byron White is rumored to be thinking of retirement. Once again interest groups in Washington are proclaiming how important the November election will be in shaping the future of the court -- just as many of them had said in 1980 and 1984. This time, they are probably right.

With reporting by Steven Holmes/Washington