Supreme Court changes

President Reagan always manages to appear relaxed, even when the news he's announcing is tense. He was truly relaxed last Tuesday morning and he had in his eye a small glint of triumph.

For once, he was about to announce something that would make banner headlines and the top television story, something he'd known about for three weeks and yet, for, I should guess, the first time since he went to the White House, he had a piece of tremendous news that no reporter from television, radio, newspaper, appeared to have an inkling about.

You know, since Watergate and the fame of the two men who unmasked it – Woodward and Bernstein – every fledgling reporter has had the itch to flap his wings in public and become famous as an investigative reporter. The result has been an army of reporters from all the media tunnelling under the White House and the Pentagon and the Department of Justice to make a channel for a stream, or driblet, of leaks and very little that happens, theoretically, behind closed doors in those sacred precincts, fails to get in the papers or out on the tube before the president or Secretary Weinberger or Attorney General Meese is ready to announce it.

On Tuesday it was different. The president called in the press. He appeared as brisk and cheerful as ever, but with, as I say, the satisfied grin of the Cheshire Cat. He at once tossed the unpredicted thunderbolt at the gasping press. At the end of May, Mr Warren Burger, the chief justice of the United States, had advised the president that he wanted to devote his full energies in the coming year to his work on the commission which, in 1987, will celebrate the 200th anniversary of the writing of the Constitution of the United States.

The chief justice was, therefore, resigning from the court. In his place, the president would elevate Justice William Rehnquist and to fill Justice Rehnquist's place, the president intends to nominate a judge, one Antonin Scalia who is, at present, on the United States court of appeals for the District of Columbia circuit. So there.

Notice that the president 'intends' to nominate. He cannot appoint anybody to the court without the confirmation, the advice and consent – as the constitution puts it – of the Senate. President Johnson failed once and Mr Nixon twice to get an appointee confirmed. There's little doubt, however, that Mr Reagan's choices will be confirmed.

The appointment of a new judge to the United States Supreme Court is always a matter not merely of great public interest, but of great relevance to the running of the country. The choice of one man can, indeed, turn around the direction of American society and the movement of the law because the Supreme Court is the final arbiter not between the laws of one state and another, not between the government and the rest of us, it's there to interpret the constitution as it defends the rights of all American individuals.

This can mean that the court will uphold a worker against his company, a company against a worker, a township against its state laws, even the government against the president. In one of its most recent historic judgments, the court sustained the right of an eight-year-old black girl against her city school board to go to a neighbouring white school and, thereby, the court sparked the black revolution of the past 30 years.

And, as few of us beyond the age of puberty will ever forget, the court, under Chief Justice Burger, forced President Nixon to turn over to the House the secretly taped conversations that revealed, finally, his two-year cover-up of his knowledge of the Watergate burglary and all its subsequent criminal squalor and doomed him to exile.

But usually, in less dramatic incidences, the appointment of a new judge can affect the political balance of the court. Of course the justices are supposed to be above and beyond politics and are there to interpret the constitution, not to make law. Naturally, since people are always arguing about the justice of a new law or the relevance to our day of an old one, the court is always having to consider whether some law or other – federal or state or city – is now to be considered fair, constitutional, in what Mr Justice Holmes called 'the moral climate of the time'.

Many times, years apart, the court has reversed itself. Once upon a time, it ruled that there was a constitutional right of a ten-year-old child to work a 12-hour day. Many years later, the court decided that such servitude was cruel and unconstitutional.

But even justices of the Supreme Court, for all their grandeur and their determined sincerity to interpret the constitution in the light of their own day, are human beings. If they weren't, they would be superhuman intelligences who never disagreed. Every ruling would be unanimous. As one old chief justice put it, 'The constitution is what the judges say it is.'

In practice, the constitution is what a majority of one says it is. For example, 13 years ago, the court struck down the law of one state that banned abortion. The court ruled that the constitution guarantees a right to abortion. The vote of the nine old men was seven to two. Now ever since Mr Reagan came to the White House, indeed, long before, he's been chiding the court and urging it, whenever a new case came up, to reverse the 1972 judgement and ban abortion.

In the debate which blows steadily across the country like a prevailing wind, sometimes rising to gale force, Mr Reagan is unwaveringly on the side of the Right to Lifers against the Freedom of Choice advocates. So far the court has stood firm. Only last week, the court struck down a Pennsylvania law that would regulate the right to an abortion by allowing doctors to bring their expert weight to bear on saying why a pregnancy should be continued. This was not the same as allowing abortion on demand or banning it. The court evidently felt the Pennsylvania law hedged the main question and struck it down.

But, note, this time by only a five to four majority. One man's change of mind could have opened the door to other suits requiring the 1972 decision approving abortion to be looked at all over again.

The increase in that case, and the number of dissenting judges from two to four, was enough to make a lot of people – liberals and feminists mainly – fear, and a lot of other people – conservatives and Reagan allies mainly – hope that some time soon one of the so-called liberals on the court would retire or, save the word, die and allow President Reagan to appoint a judge with conservative leanings. Most of the judges are well along in their seventies. It's an annoying fact of life to presidents saddled with an unsympathetic court that most Supreme Court judges seem to live as long as orchestra conductors.

Well, we were in the middle of all these speculations, guiltily looking at the ages of the judges we like or don't like and hoping or fearing that the present court would or would not get through to 1989 and outlast the Reagan presidency, when in pops the president with his startling announcement about Chief Justice Burger's resignation.

Chief Justice Burger has been, on the whole, of a conservative bent. Justice Rehnquist, the new chief justice, has been positively of a conservative bent. The new man, Judge Antonin Scalia, is not known at all to the general public but he is known and greatly admired by lawyers who are close to the federal court system. Naturally, newspaper reporters who'd never heard of him were eager, not to say anxious, to know what label to slap on him – conservative, liberal, constructionist, reformist. After all, they had to write a quick piece promising or threatening the demise of the old liberal court and the buttressing of Mr Reagan's conservative views by a loyal conservative court.

It turns out that Judge Scalia is a mere 50-year old called, by a liberal colleague, conservative but not anti-government; by a conservative colleague, essentially a consensus builder. He is a profound scholar of the Supreme Court and all the available evidence seems to show that nobody should prejudge the way he's likely to jump on any issue.

In the end, I think, it comes down to one home truth and to one historical fact about the court that rarely gets recalled during the changing of the guard. The home truth is the fact that all presidents choose judges they believe to be of their own political bias. Nobody did this more blatantly than Franklin Roosevelt. He even tried to pack the court with liberal judges by putting up a bill to Congress that would increase the court from nine to 15 judges. The bill was quietly buried by the Senate.

The historical fact is that while all presidents think they are appointing ventriloquist's dolls, they sooner or later discover that some of their most trustworthy dolls turn into men (there's one woman), men of independent mind. A new justice of the Supreme Court, after all, suddenly discovers that he's well paid, he's there for life, he's never up for election, he can look over his life and revise his political ideas. He can truly think for himself. He can become his own man.

And sometimes that new man deeply pains the president who chose him. Felix Frankfurter, who was one of the New Deal's crusading liberal lawyers, he got on the court and became an almost pedantic conservative. Earl Warren was a California district attorney, a Republican governor, a sunny, affable, country-club conservative. Loved baseball. Just the type for President Eisenhower to make chief justice of the United States. Wonderful.

Warren turned into the leader of the liberal Warren court, effecting great and permanent changes in criminal procedure and the legal rights of criminals and, especially, in the relations between the races. Said Eisenhower later, 'The biggest damn fool mistake I ever made'.

So the conservatives and the liberals this weekend are much in the position of two parents who've been wondering when their daughter would settle down. The father goes around smiling at the thought that his daughter is, after all, going to marry the right man. The mother is glum at the thought that, on the contrary, she's marrying the wrong man.

They're both wrong in the sense that nobody on the outside of a marriage – or for that matter on the inside – can ever be sure how it's going to turn out.

This transcript was typed from a recording of the original BBC broadcast (© BBC) and not copied from an original script. Because of the risk of mishearing, the BBC cannot vouch for its complete accuracy.

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